Majority
p. 569The State, for the use of Peter A. Browne, Executor and Trustee under the last Will and Testament of Samuel B. Davis, deceased, v. William H. Rogers.
Headnote
Pending proceedings in review, and on an issue of demsavit vel non to set aside a will admitted to probate, and on which letters testamentary had been granted to the executor therein named, the Register removed the executor and appointed an administrator, pendente lite, on the estate of the deceased, who, during the progress of the litigation, filed his petition under the provision of the statute, Revised Code, 298, before the Chancellor, and obtained an order on the executor, so removed, to deliver to him all the unadministered effects belonging to the deceased; on which the executor proceeded to file his account before the Register, which exhibited a balance in money of $390 against him, and which he thereupon paid over to the administrator pendente lite, and also delivered to him all the unadministered effects belonging to the deceased. The will was afterwards set aside, and the letters testamentary were revoked; and another will of the testator having afterwards been allowed and admitted to probate, and letters testamentary granted to another as the executor thereof, he filed exceptions to the account of the
p. 570
preceding and removed executor, and succeeded in surcharging it to the amount, including the balance, as ascertained by it, of $1280.48; upon which he instituted an action on the official obligation of the removed executor to recover the difference between the two sums, as unadministered money in the hands of the removed executor, payable under the ' condition of his bond to the succeeding executor. Held, that he was entitled to recover it, notwithstanding the remedy resorted to before the Chancellor by the administrator pendente lite, the passage of the account and the payment of the balance appearing thereon against the removed executor by him, and his delivery of all the unadministered effects belonging to the deceased during the litigation to such administrator ; and that the remedy provided in chancery did not preclude or supersede the remedy by action on the bond to recover the same, as unadministered money in the hands of the removed executor. Also, that the action on the bond may be maintained for such purpose by a remote as well as by an immediate successor in the office, on the removal of the preceding executor or administrator, where there has been an intervening administration on the estate.
A will made by a citizen of the State, in the State, contained the following provision: “ If at any time my executor and trustee herein named shall find it necessary to relinquish this executorship and trust, and the management of the estate herein intrusted to him, it is then my desire that the Orphans' Cqurt of the Oity and County of Philadelphia shall name a suitable person as an executor and trustee in his place; and I do hereby appoint the person so named to be in that event my executor and trustee.’1 The executor and trustee named in the will renounced and refused the office; upon which the Orphans’ Court for the bity and County of Philadelphia named another citizen of Philadelphia as a suitable person as an executor and trustee in his place, to whom letters testamentary were afterwards granted as the executor of the will, by the Register for Hew Castle County. Held, that the grant of letters testamentary, thus made to him as executor of the will, was valid and legal, and that it was not necessary and proper that, instead of letters testamentary, letters of administration mm testamento annexa should have been issued to him by the Register.
This was an action of debt in the Superior Court for Hew Castle County, on a testamentary bond, in the name of the State, for the use of Peter A. Browne, executor and trustee under the will of Samuel B. Davis, deceased, against William H. Rogers, and came up on a case stated, and questions of law reserved for a hearing, before all the Judges in the Court of Errors and Appeals. Heard before Harrington, Chancellor, Gilpin, Ch. J., Milligan,Wootten, and Houston,- Justices.
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The following was the statement of facts agreed on and submitted by the counsel to the Court. Samuel B. Davis, a citizen of the State of Delaware, and domiciled in ¡New Castle County, died on the 5th day of September, 1854, and on the 8th day of September thereafter, a paper writing, purporting to be his last will and testament, was duly admitted to probate by the register of wills in and for said county, and letters testamentary were in due form granted to William- H. Rogers, who with James Rogers as his surety, entered into the said testamentary bond to the State in due form according to law. Afterwards, certain proceedings in review were instituted before the said register, in the course of which the letters testamentary, so granted to the said William ¡EL Rogers, were revoked, to wit, on the 14th day of July, 1855, and he was removed from the said office of executor, and a certain George W. Sparks was appointed administrator pendente lite; and on the 14th day of December, 1855, it was decreed by the said register that the said paper writing was not the last will and testament of the said Samuel B. Davis, and the same was rejected, and the probate thereof vacated; and on the 21st day of December ensuing, a certain other paper writing was propounded to the said register, and proven and allowed as the last will and testament of the said Samuel B. Davis, deceased; by which said will, bearing date the 4th day of June, 1850, Henry D. Gilpin, Esq., was appointed executor and trustee, which said Henry D. Gilpin having renounced the said executorship, on the 10th day of December, 1855* the said Peter A. Browne, of the city of Philadelphia, in the State of Pennsylvania, was by the Orphans’ Court, in Philadelphia County, in the State aforesaid, named and appointed executor and trustee, under and by virtue of a clause or provision of said will, as follows: “If at any time my executor and trustee,'hereinbefore named, shall find it necessary to relinquish this executor-ship and trust, and the management of the estate herein intrusted to him, it is then my desire that the Orphans’ Court for the City and County of Philadelphia should name
p. 572
a Suitable person as an executor and trustee in bis place; and I do hereby appoint the person so named to be in that event my executor and trustee.” Whereupon letters testamentary were, on the 24th day of December, 1855, granted, by the said register for New Castle County, to the said Peter A. Browne. On the 17th day of December, 1855, the said William H. Rogers, named in the said instrument of writing first hereinbefore mentioned, as executor and devisee in trust, prayed an appeal, from the decree of the register, setting aside the said will and the order directing the costs of the several issues as well as the costs of appeal to be paid by him, and also from the previous decree revoking the grant of letters testamentary to him as aforesaid; and thereupon the said register made the following order: “ December 21st, 1855. The said application of the said William H. Rogers, Esq., praying an appeal, having been considered by the register, the appeal, so far as relates to the costs directed to be paid by him, is granted; but the appeal, so far as relates to the decree of the register setting aside the said will and the order of the register revoking the said letters testamentary, is not granted.” Which said appeal the said William H. Rogers caused to be docketed in the Superior Court for the' said County of New Castle, and the same was there pending and undetermined until the 10th day of December, 1857, when the same was dismissed. And after the removal of the said William H. Rogers, as executor as aforesaid, the said George W. Sparks, administrator pendente lite, preferred his petition to thé Chancellor of the State of Delaware, for an order upon him to deliver to the said George W. Sparks, administrator as aforesaid, the unadministered effects of the said Samuel B. Davis, deceased ; and thereupon, to wit, on the 1st day of August, 1855, it was' ordered by the Chancellor that the same should be done; whereupon the said William H. Rogers filed his accounts before the register of wills for said county, and paid over to the said George W. Sparks, administrator as aforesaid, the balance found to be due, and
p. 573The testator in this ease, by his last will and testament, appointed Henry D. Grilpin his executor and trustee, who renounced, and letters of administration, cum testamento annexa, were thereupon granted by the Register of Hew Castle County to Peter A. Browne on his estate, and the question to be considered is, what
delivered to him without delay all the unadministered goods and chattels, rights and credits, money, securities, books and papers belonging to the estate of the said deceased. But afterwards, to wit, on the 10th of December, 1857, exceptions were filed before the said register by the said Peter A. Browne, as executor of the said Samuel B. Davis, to the said accounts, and the same were heard before the Orphans’ Court for said county; and by the decree and order of the said Court, the said William H. Rogers was surcharged with the sum of five hundred dollars, which the said register had allowed him to retain to defray the expense of the said several issues; and with the farther sum of three hundred and ninety dollars, parcel of the commissions allowed to the said accountant; and the account, as thus surcharged and amended, exhibited a balance against the accountant of twelve hundred and eighty dollars and forty-eight cents, instead of a balance of three hundred and ninety dollars, as originally found by the register. Interest was also awarded upon the said respective amounts surcharged, from the 9th of August, 1855. And the present suit was instituted to recover the said balance, less the original balance ascertained by the register, and which was paid to the said administrator pendente lite; judgment to be entered in the said Superior Court for the sum of eight hundred and ninety dollars and forty-eight cents, with interest, if properly chargeable (the said sum of five hundred dollars aforesaid having been held in bank to await the event of litigation), provided the Court in bank in the Court of Errors and Appeals shall be of the opinion, upon the matters stated, that the plaintiff is entitled to recover.
T. F. Bayard, for the plaintiff:
p. 574authority does this appointment confer upon him under the laws of this State ? The act or sentence of the register of wills, touching the grant or revocation of letters testamentary is, under the. laws of this State, conclusive of the right of the party therein named to administer, and cannot be called in question, except on appeal therefrom to the Superior Court, whose decision is final in regard to the matter. Rev. Code, sec., 15, p. 500, sec. 46, p. 308; State Constitution, Art. 6, sec. 22. When an executor or administrator is removed from his office, the succeeding executor or administrator is entitled to receive all moneys and other' assets belonging to the estate remaining in the hands of the removed executor or administrator with which he is chargeable at the time of his removal. Burton’s Administrator v. Tunnell et al., 5 Harr. 190 . It is true that pending the litigation of the will, which >was set aside on the 14th of July, 1855, Mr. Rogers, the executor under that will, was removed, and Mr. Sparks was appointed administrator pendente lite, and on the first of August following, the Chancellor made an order that' the unadminis-6 tered goods and chattels, rights and credits, money, securities, books and papers, belonging to the estate of the testator,,should be delivered to him; but there is nothing in this fact or circumstance in the case to preclude the right of Mr. Browne, who was afterwards duly appointed executor of the present will, to maintain the present action against the removed executor, as the appointment of Mr. Sparks was only temporary and during the continuance of the litigation merely; and by the account filed by Mr. Rogers before the register as executor, there was a balance in his hands due the estate of $390, which he paid over to Mr. Sparks as such administrator. But afterwards, on the expiration of his special and temporary appointment as administrator pendente lite, and after the appointment of Mr. Browne as executor of the present will, the latter filed exceptions to that account, and on a hearing in the Orphans’ Court, it was surcharged to the amount .of $1290, including the balance appearing thereon, and
p. 575which had already been paid by the defendant, to Mr. Sparks. The sum therefore for which this action has been brought is $890.48, with interest from the 9th day of August, 1855; and I apprehend there can be no question as to the right" of the plaintiff, under the facts stated, to recover that amount in this action. There is a wide distinction between this case and the case of Burton’s Admr. v. Tunnell et al., cited on the other side. As to that case, I have had strong doubts as to its correctness, and I at one time thought of asking the Court to review its decision. But assuming it to be a sound decision, I say it is entirely different from the case now before the Court. It is assumed," however, on 'the other side, that the decision of the register in this case is final and conclusive, and is not to be called in question except before him, or on appeal. But if the register has transcended his jurisdiction, such is not the case; because the statute implies, and it must be so understood, that in a court pf limited and special jurisdiction like this, that his decision shall only be conclusive in matters within his jurisdiction. How, I think that the only remedy for a surviving, or succeeding administrator, on the death or removal of a co-administrator, or a preceding administrator, is by,petition to the Chancellor, under the provision of the statute, Rev. Code, p. 298, to recover the unadministered goods, &c., remaining in his hands, who has authority, by virtue of that provision, to order and enforce the delivery of them; and this I maintain, notwithstanding the latter part of the form of the bond prescribed in the Code, p. 299. But supposing the right of action to exist, it applies only on behalf of the immediate, and not of a remote successor. In this case there was an intervening administrator, and he alone could maintain the action. And I contend that in no case can a succeeding administrator maintain an action against a preceding administrator for administered goods; because the former cannot proceed
Wm. H. Rogers, for himself, the defendant:
p. 576against the latter as for a devistavit, for such is the nature of this proceeding at common law. Wernick v. McMurdo, 5 Rand. Rep. 51 ; Thomas v. Hardwick, 1 Kelly’s Rep. 78; S. C. 10 Georg. Rep. 266; Nixon’s Admr. v. Harrison, 4 Florida Rep. 56 ; Alsop v. Mathers, 8 Cown. Rep. 584; Chamberlain’s Admr. v. Baker, 2 Porter’s Rep. 550; Haythrop v. Hook’s Admr. 1 Gill & Johns, 271; Sibley v. Wil liams, 3 Gill & Johns, 52; Smith v. Carren, 1 Richardson’s Rep. 123; Young v. Kimball, 8 Blackf. 167 . A removed executor and the representative of a deceased executor stand in precisely the same condition, and are subject to the same liability and the same duty; and this duty and liability and the scope of the successor’s authority extend only to unadministered goods. A suit upon the official bond is necessarily founded upon the idea of a devistavit; but any conversion of the effects of .a. testator, whether rightful or wrongful, is an administration of them, as to a succeeding executor or administrator; and an account settled before the register is full and conclusive evidence, not only of an administration, but of a full and proper administration, as far as relates to the successor, and he cannot in any manner or proceeding question its validity. There is no privity between a removed executor and a succeeding administrator, especially when there has occurred an intervening administration; and the remedy by action on the bond does not accrue to a remote, but only to an immediate successor; and besides, that remedy can only be for goods remaining unadministered in his hands, and for no others. At all events, admitting the summary remedy by application to the Chancellor to be cumulative-merely, yet if the successor elects to take such remedy, he and his successors are bound by such election, and cannot afterwards resort to an action on the official bond; and the delivery to the administrator pendente lite, whose right to receive was thus judicially settled by the order of the Chancellor, of all of the unadministered goods and chattels, &c., and the payment of the balance judicially ascertained,
p. 577was a full and complete performance of the condition of the bond. But, supposing that I am wrong on all these points, I assume .in the next place that the plaintiff in this action is not the rightful and lawful executor, or administrator c. t. a. of the testator. Because it was not competent for the testator, who resided in this State at the date of his will and at the time of his death, to authorize a foreign tribunal to appoint or nominate an executor of his will in this State; and even if he had that power, it was not done in accordance with the terms, or in the exigency contemplated and provided for in the will, which must be pursued strictly in this respect, and it is therefore invalid. 2 Sugd. on Powers, 504; Sharp v. Sharp, 2 Barn. & Ald. 406; Townsend v. Wilson, 1 Barn. & Ald. 608; McAdam v. Lagan, 3 Bro. Ch. Ca. 310; Boyer v. Waller, 9 Dana, 482 . There was a renunciation of the office by Mr. Gilpin, not a “ relinquishment” of it, and a refusal to accept, not a cessation from its “ management.” The appointment here is in terms ancillary to the Pennsylvania appointment, and rests upon it. The courts of Pennsylvania can under no circumstances assume the power to appoint an executor to a party domiciled at the time of his death in Delaware. The jurisdiction is strictly local, and pertains exclusively and originally to the register of the county of his domicile. Besides, our act provides that if an executor renounces, refuses, or neglects to take upon him the office, an administrator cum testamento annexa shall be appointed; but in this case, after the renunciation of Mr. Gilpin, letters testamentary were granted to Mr. Browne, by the register, which is contrary to and unauthorized by the act. I shall not follow the counsel on the other side into the question as to the due execution of powers, but I shall rely on the decisions of the highest court in this State, and the questions which properly arise on the case stated. What is to become of proceedings in the Register’s
T. F. Bayard, in reply:
p. 578Court, if they can be collaterally impeached in every suit which an executor may be obliged to institute against the debtors of the estate which he represents ? Who, under the laws of this State, has power to grant or revoke letters testamentary, or of administration? To the register of wills, in the several counties, the sole power is granted for these purposes, and by the statute Rev. Code, 300, sec. 15), an appeal is given to the Superior Court from his decision in such cases, and I utterly deny that it is competent for a debtor of the estate, in a suit against him by an ex-. eeutor, to call in question, in this collateral way, the correctness or validity of his decision in such a matter; for- it is final and conclusive, unless appealed from" and reversed in the mode prescribed by the statute. The -next question is, whether a removed executor can be sued on his official bond by any other than his immediate successor, there having been in this case the interposition of an administrator pendente lite, after the removal of the defendant and before the appointment of the present executor, for whose use the suit is brought. The words embraced in that portion of the condition of the bond on which this question depends, do not even contain the word “successor,” much less, immediate or remote successor; for its language is, “ shall, without delay, deliver to the person or persons entitled to receive the same, all the unadministered goods,” &c. Row, who but,the present executor was the person entitled to receive the balance demanded in this case, and which was not judicially ascertained and deter-” mined until after his appointment to the office, and which was done upon exceptions filed by him to the account which was passed and filed before the register during the temporary administration of Mr. Sparks ? As to the question raised in regard to administered and unadministered goods, and the right of a succeeding administrator to maintain an action on his bond against a removed executor or administrator, it is settled in the case of Burton’s Administrator v. Tunnell et al., before cited by me. But the amount claimed in this case was not administered goods, or money,
p. 579because the estate of the testator is not yet settled; there are still outstanding debts against it to be paid and satisfied, and it is therefore not a residue remaining for distribution in the hands of the removed executor; although the Court refused to recognize even this distinction in favor of the sureties of the removed administrator in that case.
it was held that the present executor, for whose use the action was brought, had been duly appointed executor under the provisions of the will of the testator, and as such was entitled to maintain this action on the official obligation of the defendant, as the removed executor, notwithstanding there had been an intervening administration pendente lite, subsequent to the removal of the defendant from the executorship and prior to the appointment of the plaintiff to it; and the following decision was directed to be certified in the case to the court below:
And now, to wit, June 18, 1858, this case having been duly heard and argued by counsel on both sides, at the present term of this Court, before all the judges thereof, upon all the points of law reserved and set forth in the above case stated, and the same having been duly considered by the said Court, it is ordered, adjudged, and decreed, that the plaintiff is entitled to recover the sum of eight hundred and ninety dollars and forty-eight cents, with interest thereon from the 9th day of August, 1855, and that judgment be entered in the court below in favor of the plaintiff for that sum, together with the costs accrued in this Court as well as in the court below, and that the foregoing decision be certified to the court below, and the record remanded.