Clement's Appeal from Probate

Carpenter, J.

This is an appeal from the decree of the court of probate allowing the administration account of Charles H. Brainard, executor of the will of James M. Goodwin, deceased.

The reasons of appeal call in question several items of the account in which the executor charges the estate with the expenses of litigation during the settlement, claim that the executor has not credited all the income he has received, and raise some questions relating to interest. There are also involved in the controversy some questions relating to the application of some portions of the income to the payment of his own private claims against the beneficiaries under the will.

The case was referred to a committee, who found the facts, and the questions of law arising upon the report were reserved for the advice of this court.

We will first consider the expenses of litigation.

1. Services and counsel fees in the appeal of James M. Goodwin, Jr.

It appears that the controversy on that appeal involved three questions—one relating to the propriety of allowing certain claims against the estate presented by the executor, and by the executor and his wife; one relating to cash received by the executor for the right to subscribe for stock *530 in the iEtna Fire Insurance Company, sold by him, (—whether the money so received should be treated as income or principal;) and one relating to interest.

The first was a question between the executor personally and the executor and his wife on the one hand, and the estate on the other, and was decided in favor of the estate. The third concerned the executor personally, and was decided^ in his favor. The second was a question in which he had no personal interest, but was really a question between those entitled to the income of a portion of the estate for life and those entitled to the property after the termination of the life estate. That was determined to be a part of the principal as claimed by the executor.

If the whole controversy had been in respect to the first alone we think it is quite clear that the executor could not properly have charged anything for his services and expenses. On the other hand, had it related to the second alone, it is equally clear that he would have been entitled to charge. Under the circumstances we think an apportionment was proper.

There is and can be in such cases no rule that will do exact justice; we.can only approximate a right result. As the apportionment made by the committee does not appear to be inequitable we think the executor is entitled to charge that amount.

2. In the case referred to the Superior Court awarded costs against the executor to be paid from the estate. The judgment for costs was assigned to the counsel of the appellants. The executor refused to pay and a suit was brought. He employed counsel and kept the case in court a long time, claiming as ground of defence a right of set-off, but ultimately paid the demand without a trial. It is found that he acted under the advice of counsel, hut it is not found upon what statement of facts the advice was given.

To justify charging the expense of defending that suit it should appear that it was defended in the interest and for the benefit of the estate. Confessedly there was no defence; in some other manner therefore must the executor show that *531 he acted in good faith. The burden is on him. The mere •fact that counsel advised him that he had a defence is not sufficient; he should go further, and disclose not only the nature but the grounds of the defence; at least enough to enable the court to see that he acted reasonably. In this he fails. It is not found expressly that, he acted in bad faith; neither is it found affirmatively that he acted in good faith; while the facts which do appear, in the absence of satisfactory explanation, tend strongly to the conclusion that he did not exercise that degree of care and prudence that men ordinarily exercise in respect to their own affairs. We advise that this item be disallowed.

3. Mrs. Wells died in 1875. After her death there was no occasion for delaying the final settlement of the estate. H. W. Goodwin died in 1876. After his death, which terminated the trust, his children demanded of the executor a settlement and payment of the amount to which they were entitled. Upon refusal a suit was brought against him as trustee under the will, seeking to compel him to account in the Superior Court. He defended, much of the account being in dispute, and also on the ground that he held the property not as trustee but as executor, and that the Superior Court had not original jurisdiction of the cause. The latter ground of defence was sustained by the court as to the greater portion of the estate. The expenses of defending that suit were apportioned by the committee; and the propriety of charging any portion of it to the estate is the question here presented.

The liability and duty of the executor to account and close the settlement of the estate must be conceded. The law furnished an appropriate tribunal to entertain jurisdiction of all matters pertaining to that account. Instead of resorting to that tribunal in the ordinary and usual course, parties interested in the estate proceeded against him in the Superior Court, claiming under the circumstances that he should be charged as trustee. What the result would have been had that claim been sustained and his account settled in that proceeding it is useless now to conjecture. Suffice *532 it to say that the executor had a right to insist that his account should be settled in the court of probate. He might perhaps have waived the defence and submitted to the jurisdiction of the Superior Court, in which event the result might have concluded the parties. But he could not be compelled to take the risk of the complications and difficulties that might have arisen. Therefore it was his privilege, and perhaps his duty, to defend as he did. It will hardly do to deny him this right on the ground that he had neglected his duty. For that neglect the law provided an ample remedy. If the parties interested failed to resort to that they are to some extent responsible for the delay. We advise that the sum named by the committee ($862.96,) be allowed.

We come now to some questions relating to the application of the income during the life time of Henry W. and James M. Goodwin, Jr.

1. The executor paid to himself from the income payable to Henry W. Goodwin, and by his consent, a note amounting to $2,375.61, and debited it to the income. The appellants claim that the note was void and could not have been enforced against Henry W. Goodwin. It appears that in 1861 H. W. Goodwin, being in embarrassed circumstances, compromised with his creditors, paying them thirty-five per cent., and took a discharge for the balance. The executor was a creditor and signed the composition agreement. Afterwards this note was given for the balance of that indebtedness to Mr. Brainard. Had it been given pursuant to an express or implied agreement with the debtor it would have been void. But it is claimed that Mr. Brainard signed the agreement at the request of the testator and upon a promise by him that the balance of his claim should be paid. We have no occasion now to inquire whether Mr. Brainard could have enforced that promise against the testator, as he has not attempted to do so. Practically he treated it as made for and in behalf of H. W. Goodwin and took the note of the latter in fulfillment of that promise. We must regard it therefore as a transaction with Henry *533 W. Goodwin, and contrary to the rule of law which forbids one creditor under similar circumstances from contracting for a private advantage not accorded to the other creditors. The note therefore was not collectible.

But it is said that Mr. Goodwin paid the note voluntarily, and that neither he during his lifetime nor his children after his death could recover it back. In Doughty v. Savage, 28 Conn., 146 , there is a dictum by Stokes, C. J., that such a debt paid by the debtor could be recovered back. We neither affirm nor deny that proposition, but concede for the purposes of the case that Goodwin himself could not have recovered it back, and that his children, so far as they derive title through him, are in no better situation than he was. But that does not meet the question here, because they do not derive title from their father but from the will of the testator. The will provides that the trustee may at his discretion pay over the income to Henry W. Goodwin for the support of himself and family during his life, and at his death the trustee is directed “ to pay and deliver over the same in equal portions to his children.” The word “same ” manifestly includes not only the body of the trust fund but also any unexpended portion of the income; so that the children as legatees have a right to question - the propriety of any payment charged against the income, and that right is not affected by any act or agreement of the father disposing of the income in any manner not contemplated by the will.

But there is another objection to this charge which we ought not to pass unnoticed. The clear intention of the testator was that no portion of this income should be liable for Henry W. Goodwin’s debts, with the possible exception of debts subsequently contracted for the support of the family. Hence the provision that the income was payable at the discretion of the trustee. Now when he exercises his discretion by appropriating a portion of the income to an alleged old debt due to himself, but which is in fact not a debt that he could enforce, he violates the terms and spirit of the will in the most objectionable manner. Yea more, *534 he violates a most salutary and wholesome rule of law, that a trustee shall derive no personal advantage, from the trust fund and shall not use his position directly or indirectly to benefit himself by using the influence which that position gives him to induce the beneficiary to consent to the payment of an illegal demand.

But it is said that the children were only entitled to their support from the income, and that after supporting the family the balance, if any, belonged to-H. W. Goodwin, and that he might well use it to pay debts. Neither premises nor conclusion will bear close inspection, for the children in addition to their support are entitled to the trust fund ultimately and to the residue of the income; and the will impliedly prohibits the payment of debts except at the discretion of the trustee, and it is hardly a reasonable exercise of that discretion to pay an invalid claim to himself. If Mr. Goodwin by the consent of the trustee had paid an existing bond fide debt, that would have presented a different question.

Another question is made in this part of the ease which is worthy of consideration. It seems that in April, 1872, the executor submitted an account to the court of probate, in which he debited the estate in one item with the amount paid from the income to the legatees, and that item contained the amount paid on this note.' That account was allowed and James M. Goodwin took an appeal, contesting other charges but not this. Other charges were disallowed and the decree affirmed in other respects. It is now claimed that this question was conclusively settled by that proceeding.

In Mix's Appeal from Probate, 35 Conn., 121 , it was held that a court of probate has power, in its final decree settling an administration account, to correct any errors made in any former and partial settlement of the account. That applies to errors of omission and improper charges and credits. That the account of 1872 was in fact a partial and not a final settlement is apparent. By a reference to the committee’s report it will be seen that interest falling due *535 April 1st, 1870, and April 1st, 1871, amounting to $1,800, and not included in the account of 1872, is now charged to the executor without objection. So also the item of taxes paid in 1870 and erroneously charged to income, is now credited to income and charged to the principal by way of correction without objection. These instances serve to illustrate at once the rule, its reasonableness, and its application to the present case. .

In this case the appeal was taken by J. M. Goodwin, Jr. This item was one in which H. W. Goodwin and his children alone had an interest. H. W. Goodwin was then living, but neither he nor his children were made parties. They are therefore not to be affected by the fact that J. M. Goodwin in his appeal made no objection to the allowance of this item. He had no interest in making objection. Even if he had made objection and the court had adjudged it a proper item to be allowed, the decision would have been, as to H. W. Goodwin and his children, res inter alios acta and could not have concluded them. There was nothing therefore in the way of the probate court, in its final settlement of the executor’s account, dealing with this item as if there had been no appeal.

2. Mr. Brainard held a note against H. W. Goodwin and wife for $1,950. The consideration of that note was several smaller ones previously given for money expended for personal and family expenses of Mr. Goodwin after the death of the testator. In 1876 Mr. Brainard applied on that note from the income of H. W. Goodwin, pursuant to an agreement with him, three payments amounting to $772.68. We are inclined to consider that sum as paid to the uses of the trust and a proper charge in the account.

3. The executor claimed that James M. Goodwin, Jr., was indebted to the estate. To the payment of that claim he applied from time to time various sums of money of the income payable to him, and charged them to his account. His administrator and heirs denied the propriety of those charges. The committee found that he was not indebted, and made a statement in one of the schedules of the amount *536 withheld by the executor. That schedule contains only the items charged after April 1st, 1872. Before that date he had retained and charged as interest the sum of $500. It is now claimed that that sum with interest should be paid from the estate to the administrator before distribution.

Interest is an incident to the principal and as a rule stands or falls with it. As there was no debt there was no interest; therefore the administrator is entitled to receive that amount unless the right to it has been waived.

That sum was an item in the account of April 1st, 1872. We have already seen that that was not a final account and was not in itself conclusive. What is necessary to give it a conclusive character ? It is evident that the mere right of appeal is not sufficient, for a party may well take his chances of having an erroneous charge or credit corrected in the final settlement. On the other hand, if an appeal is taken and any matter is put in issue and determined, the party has had his day in court and it would seem that it ought to be conclusive. The difficulty is in determining what rule shall apply when a party appeals and fails to put in issue a questionable matter. Shall he afterwards be heard on the final settlement ?

A party may not split his cause of action so as to bring several actions. Hence if he sues for and collects a part of an account he waives the balance. We think that principle is applicable to this question. James M. Goodwin, Jr., was not bound to appeal, but as he did take an appeal he was bound to make all objections then existing to the account as it stood. Failing to object to this item he waived the objection.

In considering the last three items we have not overlooked the fact that, strictly speaking, they have no place in the administration account. The two relating to Henry W. Goodwin seem rather to be charges against him in favor of Brainard as trustee, and as such would more properly be adjusted between them after the estate is settled upon the distribution. In them the estate of J. M. Goodwin, Jr., and his children have no interest. The same is true of all pay *537 ments made to H. W. Goodwin in Ms lifetime and which are not now in dispute. On the other hand the children of H. W. Goodwin have no interest in the account between Mr. Brainard and James M. Goodwin, Jr., or his estate, except as to those items where the controversy is between Mr. Goodwin or his estate and the estate of the testator. And as to them it would have been better if a suit had been brought by the- executor and the question of indebtedness had been determined before a settlement of' the account. And as to the settlement itself, it would doubtless have been more orderly to have ascertained the whole income received, and after deducting the expenses to have charged the executor with the balance, leaving him to adjust Ms accounts with the several legatees. Had the account been settled, as it should have been, within a reasonable time, that course would have been comparatively free from difficulty. But now it is probably quite as well for all concerned that all these matters should be adjusted in this manner. The executor in every account submitted by him credited the estate with all the income received and debited it with the payments made to the several legatees; and tMs course was acquiesced in by all the parties. They submitted to the jurisdiction of the court, and now, after a full hearing on that basis, it is too late to raise the question.

As to interest. The appellants claim that the executor is chargeable with interest on the amount of his and his wife’s claims, which were disallowed, from the death of the testator. That amount was paid from the sum of $9,000 belonging to the estate which was in the hands of the executor for investment when the' testator died. The balance of the $9,000 was used to pay debts and expenses. The executor charged the amount of these claims as paid to himself April 1st, 1872. Whether they were paid then or at an earlier day does not appear. Nor does it clearly appear how soon after the death of the testator the executor commenced receiving interest. The committee charged him with interest after the expiration of one year. We cannot say that that is unreasonable.

*538 The committee charged him with simple interest during the time that matter was in litigation, and with compound interest afterwards. That was correct. While the matter was in litigation he held the money, claiming it as his own. It is not contended that the claim, although unfounded, was made in bad faith. Pending the litigation we can hardly expect that he would treat the money as trust funds and pay over the interest annually. Nor can we properly punish him for not doing so, or legitimately inquire what profit he made by investing the money. We must apply to him the same rule that we would apply to any other person who had made an unfounded claim to a part of the trust property, and enforce the ordinary rule applicable to the collection of debts and refuse to allow compound interest.

For the same reasons simple interest was properly allowed on the claim made against Henry W. Goodwin.

From August 22d, 1873, to April 1st, 1877, the legal rate of interest was seven per cent. The executor claims that during that time he is only chargeable with six per cent, interest. That might be so on a contract made before but covering that period, or if the court was allowing interest as damages. But here the court is endeavoring to ascertain the amount of profits received by the executor for the use of the money. As he fails to account for the profits ,as such, the court will presume -that they are equal to the interest of the money at the legal rate of interest during each year. He is therefore chargeable with interest at seven per cent, during the period referred to.

The appellants claim that the executor should be charged with the interest on the income after the death of Henry W. Goodwin from the time he received it, instead of computing it from the end of the year.

Before his death the income was payable to him at the discretion of the trustee, and in the exercise of that discretion he was bound to hold it to pay over when and as needed. Usually the whole amount or nearly the whole was paid during the year and interest was computed only on the balance at the close of the year. When Goodwin *539 died his children were entitled, not only to the income but to the trust fund itself, free from the trust. After that event the executor could not rightfully continue to hold it in any capacity or for any purpose. Yet he did hold it, as the account shows, paying nothing to the children. Every day’s retention of the money was wrongful, and interest should be computed on it from the time he received it. The same rule should be applied to the income payable to the heirs of James M. Goodwin, Jr.

The Superior Court is advised to state the account according to these views and render judgment for the appellants.

In this opinion the other judges concurred.