Weir v. Weir's Administrator

42 Ky. 645, 3 B. Mon. 645, 1843 Ky. LEXIS 82

• Court: Court of Appeals of Kentucky
• Decided: April 25, 1843
• Status: Published

Opinions

Chiee'Justice Ewing

delivered the opinion of the Gouip

This is an appeal from a decree rendered on a bill filed by Eliza Jane Weir, an infant, by H. Clay, her guardian, against the surviving administrator of the estate of her deceased grand-uncle, James Weir, deceased, for her share of the distributable surplus of his personal estate.

Where an adm’r. took possession of a manufacturing establishment of his intestate, materials, cash, outstanding debts, &e. and 'carried on the establishment — held that he shall account to the distributees for interest on the fund so employed for his own purposes.—

Two questions only need be determined in this case : 1st. Is the administrator liable for interest upon the funds which came to his hands. 2d. Is the young Weirs, the nephews of the decedent, entitled to compensation for services rendered for their uncle in his lifetime,

1st. It seems that the administrators took possession of the factories, mills, shops and manufactured and raw materials on hand, at valuation, and carried on the same in their own name, and for their own benefit, using the slaves of the decedent, and no doubt the cash funds and outstanding debts. The administrators had no funds of their own; and as a very large amount of funds, in money, must have been necessary to keep up a supply of the raw material, pay hands, and support and keep in operation the various expensive establishments, it may be presumed that the cash funds on hand, as well as those that were collected, were used and employed in carrying on the business, as it is admitted that the whole of the personal estate or chose in possession, including slaves, was so used and employed. Nor is it denied that the cash funds were so used and employed, or pretended that they were set apart or kept on hand for the distributees as they might apply for the same. That those establishments yielded a profit, and most .probably a handsome profit, may also be reasonably presumed from the fact that the administrators, during their joint lives, and the survivor after the death of one of them, continued to carry on the business, and also, from the fact, thatthough called on to exhibit an account of the profits, which are charged to have been large, he has failed to do so, or to exhibit an account of the establishment, so as to enable the Court to determine whether large profits have or have not been made. Under these circumstances it is certainly proper to allow interest at least. Indeed, our only doubt is, whether we should not send the case back and require an account to be taken of the whole profits of the estab. lishments, and if profits were made, to decree a division thereof, as well as of the personal funds. It is certainly a general rule, that if a trustee or fiduciary employ the funds of the cestui que tryst in speculation or trade, or in carrying on his own business, or in a commercial adventure, that if profits are made, he is liable and may be made to account for the same, and if loss happens, he maybe made to bear it: (Leven on Trusts, 289-90, 24 Law Library, 147.) But upon consideration of the difficulties, embarrassments and delay to which the infant might be subjected, in coercing a full and complete settlement of the accounts, we have concluded to allow interest in lieu thereof; as probably under all the circumstances, equally advantageous to the infant, and of which the administrator, who might be made to account for the whole profits, can have no just ground to complain. But as a large portion of the outstanding debts may not have been collected short of twelve months from the time administration was taken, and as, if the personal property had been sold, it most likely would have been sold on a credit of twelve months, we think that the interest should commence running only from twelve months after the time administration was granted.

• — Gommenein g in this canse under its particular eircumsta nces, 12 months from the qualification of the adm’r. There is no implied assumpsit to pay for work and labor, where the conduct,situation and mutual relation of the parties does not show that it would be just.

2nd. We have had more difficulty upon the second question, that is, whether the nephews should be entitled to any compensation for their services. Their uncle, the decedent, was an Irishmen, who had emigrated to this country at an early da}’, and had amassed a handsome fortune in land and slaves, and houses and town lots in Lexington, and lived and died a batchelor. The . three nephews were young Irishmen, who amigrated to this country some years before the death of their uncle, without property or means, and were taken into his employ, fed, clothed, and decently supported by him. They, in the mean time, were actively and industriously engaged in assisting him in carrying on his multifarious and complicated business, and rendered essential and valuable services in their several stations, one of them, for some twenty years before his death, the other two for some six or eight years. No contract for hire or stipulation for wages appears ; nor is it shown, by the slightest evi. denee, that they looked for or expected compensation in the form of wages or salaries. Though they had brothers and sisters and cousins in Ireland, who were as nearly allied to their uncle as themselves, and who are entitled to come in with them for an equal division of his personal estate, the three nephews, having arrived here in time before his death to inherit from their uncle, and the infant complainant, who was born in the United States, and is the daughter of their deceased brother, are entitled, by descent, according to the laws of this State, to the whole of his ample real estate, including slaves, each inheriting one fourth, which amounts to near fifteen thousand dollars in value, to each. In addition to which, each of them are entitled to an equal share, with each of the foreign distributees, in the distribution of the personal estate. It is to be presumed that they knew well'what the law of descents was in this State. Their. interest would have prompted them to make inquiry on this subject. And being apprised that, in case of the death of their uncle, each of them would inherit one-fourth of his large real estate and slaves, as well as a share of his personal estate, •may it not be well presumed that they labored in his service and looked to the estate which would'be cast upon them, as their compensation, and to no other; and if so, may it not be well doubted, whether, in equity and good conscience, they are entitled to any other or further compensation, and the more especially as they have received, by descent, including their, distributable share in the personalty, a much larger amount than they would be entitled to receive as. compensation for services, according to any just estimate that might be made of their services.

'The defendants, young men and foreigners, came to the U. S. without means, and entered into the employ and business of their uncle, a wealthy old batchelor, •without any contract for compensation,and so continued until his death,and inherited, by descent, his real & a part of his personal estate, greatly exceeding a reasonable compensation— held that no contract for compensation is implied, but the reverse.

It is not pretended in this case, that any express contract for services was ever made. If a right to an allowance for services exists, it must rest only on an implied contract or promise to pay. It is said by one learned jurist, “that an implied contract or promise is inferred from the- conduct, situation or mutual relations of the parties,, and is enforced by the law. on the ground of justice. ” And this language is used by Chief Justice Marshall, in 12 Wheaton, 341, “a great mass of human transactions depends upon implied contracts; upon contracts which are not written, but whch growi out of the acts of the parties. In such cases, the parties are supposed to have made those stipulations which, as honesl, fair and just men, they ought to have made.” And Lord Mansfield says, that when ex equo and bono money is due, though there be no express promise to pay, that the law will imply a promise. Testing the defendant’s claim for compensation by the rules and principles just cited, and it is hard to perceive any just ground upon which they can be made to lest. From the conduct, situation and mutual relations of the parties, so far from its being founded injustice, to allow compensation, it would operate the height of injustice; and so far from the stipulations for payment, which is sought to be implied, being such as honest, fair and just men ought to have made, they are precisely such as honest, fair and just men, under the circumstances of this case, would not have thought of exacting on the one side, or have thought of making on the other. And, ex equoet bono, surely nothing moie should be exacted than the amount which has been obtained by descent.

Should their claim be allowed, as set up, they would first obtain by inheritance three-fourths of the real estate and slaves, and then exhaust, by their claim, the whole of the personal estate, amounting to some forty thousand •dollars, and thereby cut off the foreign distributees, who are as nearly allied to the decedent as themselves, from the receipt of a single dollar. Such a result cannot be equitable, nor can it be believed that it was ever contemplated by the decedent, or his nephews, in his lifetime. Indeed there is strong ground to believe that this claim was an after-thought, concocted and brought to maturity by the defendants after the infant’s suit was instituted. We never hear of it, at least, until it is set up in the -answer of the administrator, filed in May, 1837, more than five years after the death of their uncle, though a bill was filed by them for a division of the lands and slaves as early as February, 1833 ; and a settlement seems to have been made by the administrator with the County Court in 1835. Nor does it appear, even down to the final decree in this cause in 1840, that the administrator had ever paid to his brother George the amount which he sets up for hitn for services, or that George ever made demand of it from him or set up any claim for the same. And though George is a defendant to the suit he has not answered or set up any claim. The surviving administrator, James Weir, sets up the demands for all, claiming in his own right, his own demand, and also the demand of his brother Henry, by devise from him, he having died shortly after his uncle.

A legacy to a creditor, equal to the amount ofan existing debt, is sometimes considered in satisfaction thereof. Provisions by will in favor of those for whom a testator is under obligation to provide portions, sometimes considered in satisfaction of such obligation.

It has been determined that where a testator was owing an acknowledged debt, in his lifetime, and bequeathed to his creditor a legacy, simpliciter, of the same nature of the debt, and of equal or greater amount than the debt, subject to certain designated exceptions, the legacy will be deemed a satisfaction of the debt: Brown vs Dawson, (Prec. Chan. 240;) Fowler vs Fowler, (3 P. Will. 353; 1 Ves. Sen. 123, 125; 2 P. Will. 130; Prec. Chan. 394.)

But it is evident in this case that there was no subsisting obligation for a debt in favor of either of the nephews, or express stipulation for compensation in money or wages. The proof in fact repells such an idea. If any implication in favor of remuneration Can be raised, from the conduct, situation and mutual relations of' the parties, as honest, fair and just men, the. implication would be that their uncle would-, either in his lifetime or at his death, advance them out of his ample fortune an amount equivalent or more than equivalent to the amount of their compensation, and that they looked to and relied upon this expected advancement for their compensation and not to wages, for their services,, or a remuneration in money. If so, they have, by operation of law, obtained an advancement more than equivalent to their services, and equity will not imply a promise to pay more.

It has been settled as a well established rule in equity, that when a parent is under express obligation, by articles, to provide portions for his children, and afterwards, by will’or codicil, makes a provision for those children, that such testamentary provision shall, be considered a satisfaction or performance of the obligation. And so much opposed are Courts of Equity to raising double portions, that if the amount bequeathed shall be less than the amount agreed to be advanced, the sum so bequeathed will sometimes be considered as part satisfaction; Brown vs Brown, (2 Vern. 439;) Blois vs Blois, (2 Chan. Rep. 347;) Moulson vs Moulson, (1 Brown’s C. C.82;) Copely vs Copely, (1 P. Will. 147;) Ackworth vs Ackworth, (1 Bro. C. C. 307, note;) Boyd vs Boyd, (Same, 308, note; same 309, note;) Warren vs Warren, (Same, 305;) Finch vs Finch, (1 Ves. Jun. 534;) and various cases referred to and commented on in 2 Roper on Legacies, chapter XVIII.

So, where an express obligation to provide portions or make an advancement or other provision is subsisting, the devolution of a distributive share of personalty, or the descent of real estate from the person under obligation to make the provision upon the individual for whom it was provided, has been decreed to be a performance: Lee vs Dawanda, (3 Atk. 419;) Blandy vs Wilmore, (1 P. Will. 323;) Garthshon vs Carlie, (10 Ves. 1;) Goldsmid vs Goldsmid, (1 Swan. 211;) Wilcocks vs Wilcocks, (2 Ver. 558.)

If, where there is an express obligation to provide portions or make advancements, a testamentary provision or ■devolution of personalty, or the descent of realty, may be presumed and treated as satisfaction or performance, much more when, as in the case under consideration, from the conduct, condition and relations of the parties, it is rendered doubtful whether any implication for compensation can be raised, and if any, it must be regarded as an implication to make provision for them out of his estate, and they looked to that as their expected remuneration and no other; will the descent of realty and slaves, and the devolution of personalty, to a much larger amount than any of the other heirs, save the infant, and much larger than any pecuniary compensation that they might be entitled to for services, be regarded as a full performance or satisfaction of their expected remuneration? And a Court of Equity ought not and will not imply a promise to pay more. They have received, by operation of law, what they looked for, and more than they had any just right to expect, and it would be unjust to the other heirs to decree them more.

Decree reversed and cause remanded, that an estimate may be made of the interest, from twelve months after administration granted, up to the final decree, adopting the mode of calculation heretofore pursued by the Com' missioner, only changing the time when the interest is to commence running, as herein directed, and that a decree may be rendered in favor of the infant complainant for her share of the aggregate amount, so found due and unpaid, disregarding the claim for compensation for services; a refunding bond being first required, if it has not been given ; and the appellant is entitled to her costs in this Court.

Harlan Craddock for appellant: Woolley for appellee- May 17.