Lambrecht v. State

Bartol, O. J.,

delivered the opinion of the Court.

This suit was brought by the appellee upon the testamentary bond of Sydney C. Long, executor of the will of Sarah J. Wilson deceased, and was tried before the Baltimore City Court, without the intervention of a jury.

The following facts were admitted:

Sarah J. Wilson died in 1875, leaving a will bequeathing $500 to Helen M. Wilson, and appointing Sydney C. Long her executor, who took out letters and the defendant, Caroline Lambrecht, was one of the sureties on his testamentary bond. Helen M. Wilson, the legatee, died without having received the bequest, and JST. Rufus (3-ill is her administrator duly qualified. The estate of the testatrix consisted of sundry articles of household furniture valued at $191, and a debt due her from Long her executor amounting to $2500. The executor “gave in” the claim against himself as a debt due the testatrix as required by the Oode, Art. 93, sec. 224.

It was admitted that “ if, in this case, the debt owing by the executor was in law, cash assets in his hands, there were sufficient assets to pay said bequests, and that the plaintiff was entitled to recover.”

The defendant offered evidence, subject to exception, tending to prove that the executor was insolvent at the time he took out letters, and had been so ever since, and had had no funds to pay his debt to the estate, orto pay the legacy; and offered four prayers claiming exemption from liability of the sureties upon the testamentary bond, by reason of the insolvency of the executor.

The Court excluded the evidence, and rejected the defendant’s prayers, and to this ruling the defendant excepted.

The decision of the case depends upon the construction of sec. 224, Art. 93 of the Code. (Revised Code, Art. 50, sec. 139.) This section provides that: “The bare naming an executor in a will shall not operate to extinguish any *248 just claim which the deceased had against him; but it shall be the duty of every such executor accepting the trust, to give in such claim in the list of debts; and on his failure to give in such claim” (proceedings are authorized to he taken by parties interested, and also for establishing the claim in case it is contested,) “and if the executor shall give in such claim, or any part thereof he established as aforesaid, he shall account for the sum due, in the same manner as if it were so much money in his hands, and on failure his bond may be put in suit.”

The words of the Code just cited appear to he quite plain and free from ambiguity. The same statutory provision is found in the Act of 1798, ch. 101, sub-ch. 8, sec. 20. It has been in force ever since that statute was enacted, and this is the first time, so far as we are aware, that its construction has been called in question in the Court of Appeals.

By the common law, as long since settled in England, “if a creditor appointed his debtor his executor, the debt was considered extinguished at law, for the reason that the executor could not sue himself. ****** As a consequence of this it was held that the debt was paid, and was assets in the hands of the executor who owed the money, for which he was as much answerable to the creditors of the testator as if he had actually received that amount in cash from any other person indebted to the estate. At a later period, it became an established rule in equity that an executor should be accountable for the amount of his debt as assets, not only for the payment of debts, but also for the benefit of residuary legatees and next of kin. Still recognizing the principle that the executor has paid to himself the debt due by him to the testator.” Beall vs. Hilliary, 1 Md., 189 .

It was the manifest intention of the Act of 1798, to charge the executor absolutely with the debt which he might owe the testator as assets in his hands, and in order to remove all danger of misconstruction, it was provided *249 that in case of his failure to account for the sum due, in the same manner as if it were so much money in his hands, his hond may be put in suit.

The proposition contended for by the appellant is that the.intent and purpose of the statute was simply to place the debt due by the executor on the same footing as debts due the testator from other persons ; and as the sureties in the testamentary bond cannot be held liable for debts due from strangers which are desperate, and which the executor may be unable to collect, by the exercise of due diligence in the same manner, where the executor is insolvent and unable to pay his debt, it is argued, that it would be unreasonable, and contrary to the spirit and intent of the law, to hold the sureties upon his bond answerable therefor.

We have carefully considered the very able and ingenious argument of the appellant’s counsel, and have examined the authorities cited by him ; but are unable to concur in the conclusions reached by him. His argument is based on the proposition that the real intent of the statute, and its whole effect is to apply the well known doctrine of the law, by which it is established if a person is in one capacity a debtor, and the same person, in another capacity, is creditor entitled to receive the sum due, the debt is regarded in law as paid; and the money is by operation of law in his hands, in the capacity in which he is entitled to receive it. As when an executor, who has closed his administration, is appointed guardian of a legatee or distributee, and in the latter capacity is entitled to receive the money in his own hands, the same is held to be paid, and he is chargeable therefor as guardian; the fund being in his hands in the latter capacity by operation of law. It is argued that this result does not take place, or in other words, that the transfer of possession by operation of law does not take effect, where there is, in point of fact, no fund in the hands of the party to be transferred, at the time when his new capacity begins.

*250 (Decided 22nd July, 1881.)

Without now deciding upon this distinct proposition, it is clear that the effect of the statute under consideration does not depend upon the doctrine of transfer by operation of .law. Its language is plain and explicit, and must be construed according to its plain purport and meaning.

The Legislature did not intend to open the door to the inquiry whether the executor has the means and ability to pay his debt, but by express words declares that in all cases his debt shall be treated and accounted for “ as if it were so much money in his hands and this, without regard to the question whether he is, or is not able to pay it; — a question which in most instances, it would be difficult, if not impossible for the parties in interest satisfactorily to investigate or to settle.

By the express words of the Code, the bond is declared to be responsible for the debt of the executor, as if it were so much money in his hands ; and the sureties, when they entered into the bond, must be held to have assumed such responsibility. The language of the Code in this respect is so plain as to render it unnecessary to refer to any authorities in support of the construction which we have placed upon it. Nevertheless, we may refer to Stevenson, Adm’r vs. Gaylord, 11 Mass., 256 , and Winship vs. Bass, 12 Mass., 199 , (in which the opinion was delivered by Ch. J. Parker,)

In those cases the construction of the statute of Massachusetts was considered, its language was by no means so explicit as tbe provision of our Code ; and it was held that for the' debt due by the executor to the testator, the testamentary bond was responsible.

In our judgment the provision of the Code is susceptible of but one construction, and we are of opinion there was no error in the ruling of the City Court,

The judgment will therefore be affirmed.

Judgment affirmed.