Cranson ex rel. Rheubottom v. Wilsey

Campbell, J.

This suit was brought on an executors’ bond, given by the defendants Arruina Wilsey and James Franklin Mead, as executors of David G. Wilsey, deceased, *358 and Delos C. Wiley and James I. Mead as sureties. Wiley died several years ago. James I. Mead has died pending these proceedings in error.

David Gr. Wilsey’s will was probated January 23, 1871. He left to his widow, the defendant Armina Wilsey, a-life-interest in realty, and some personal property was also bequeathed to her. The residuary personal property, after providing for various matters, was to be divided so as to-, give half to his daughter, Mary D. Fitz, and the remaining half, on certain contingencies, to the two children of a deceased daughter, Calvin W. and David H. Rheubottom, who were then small infants, and who took a residuary interest in land after the death of the widow. The-bequest to these children was conditioned that in case-either died it should go to the survivor, but not in any ease to become vested until he should reach the age of 21 years. In case of death without issue before reaching-that age, the property was given to others. This fund was to be invested, and the income re-invested, in real-estate mortgages at 10 per cent. The education of these children was placed in charge of the executors, who were authorized to use so much of the income as should be-allowed by the judge of probate. Calvin W. died without issue while a minor. David Henry Rheubottom was born December 7, 1869, and is still a minor.

On May 20, 1872, the probate court ordered a division of personal property, without requiring its conversion into-cash, and the executors were required to pay Mrs. Fitz certain securities, amounting to $987.27i, and to “take-for the grandchildren of said deceased, Calvin Wilsey Rheubottom and David Henry Rheubottom,” several notes- and accounts, a reaper, and $314.12 in cash, making-$987.27|.

Nothing further was done in the probate court until-October, 1884, when John A. Sleight, guardian of David *359 H. Rheubottom, petitioned that the executes should account and file a new bond. This petition set up the death of Calvin, the insolvency of James F. Mead, the doubtful sufficiency of James I. Mead, and a fraudulent disposition of Armina Wilsey's property. The executors were cited to account, but failed to do so. A petition was then made for their removal, and for the appointment of an administrator. Upon the hearing they were removed, and Irving M. Eaton was appointed to act as administrator with the will annexed.

Mr. Eaton then applied for leave to sue on the bond, and leave was granted. The breaches assigned are the conversion of the fund to Mead's own use, with the consent of Mrs. Wilsey, a failure to use the income to educate David, and a failure to account.

The circuit judge found as facts, among other things, the order of 1872 for distribution, and a failure to invest the funds as required by the will, and. its investment in real estate in the name of James Franklin Mead, by consent of Mrs. Wilsey. The court further found the probate action before mentioned, which was not appealed from, but held that after the order of 1872 the executors did not hold the estate officially as such, but as donees of a power in trust, and that their sureties were not liable. It was held further, as matter of law, that the removal and other recent proceedings were not valid.

We do not think the conclusions of law are correct. An order of distribution alone cannot discharge executors until the estate is distributed. The Rheubottom children could not take the property, and inasmuch as their interest was contingent no one else could take it for them. The will required it to be invested by the executors. If the property had been invested in real-estate securities as required, the question might have arisen whether this was not equivalent to such a compliance with the order of *360 distribution as would have changed the nature of their holding. Upon this question we express no opinion. It is at least a doubtful proposition. But we think it is a dangerous and incorrect doctrine that executors can discharge themselves of their official responsibility without doing some act to change the character of their holding, and place the fund safely where it ought to be.

As the finding is that they did no such thing, but made a wrongful conversion of the property to the use of one of them, we think this was a clear breach of duty, for which action would lie on the bond.

It is claimed, however, that this action was brought in the name and for the use of David Rheubottom, who has no definite interest. This is undoubtedly true, and the action should not have been for his use. But the leave was granted to the administrator, who is a proper party, and who is entitled to take the fund, and see that it is duly invested.- Inasmuch as the judge of probate is the proper plaintiff, we see no reason why the record should not be so amended as to make it show the administrator as the party in interest, and it will be so done.

The finding does not show that the fund could have been compounded at 10 per cent., and there is doubt whether it could have been. But interest computed in the ordinary way at 10 per cent, will make good the conversion, and will be allowed. This will fix the amount of the judgment at §987.27£, with interest to the day when the writ of error was issued. This seems to be the first suit on the bond.

Judgment will be rendered nunc pro tuno as of that date for the penalty, to be satisfied on payment of that amount, with costs of both courts against the executors and James I. Mead, inasmuch as it is, in our view, the legal effect of the finding of facts.

The other Justices concurred.