Tappan v. Tappan

As a general rule, a party must recover according to his legal rights at the commencement of the action, and according to the legal character in which he sues. As a general rule, also, a party cannot, in his individual name, sustain an action for demands due to an estate which he represents in the capacity of executor or administrator. The designation of a person in a will as residuary legatee and executor of the will, does not at common law authorize him to collect demands due to his testate, until he shall be legally appointed by the probate court as executor. The provision of the Rev. Stat. ch. 161, § 10, by which a person interested in an estate may commence an action as administrator, and that the same shall not be abated if the administrator then or afterwards appointed shall indorse the writ and prosecute the suit, cannot apply to an action commenced by an individual in his own name. An heir has no right to the control of the personal property of his ancestor until after the administrator shall have settled his account in the probate court. As a general rule, no action can be sustained for a legacy till after demand made for the same. Where property is left by will to two persons, as joint trustees, and the interest of the fund is given to one of them, whether an action at common law can be sustained for such interest by the legatee against his co-trustee, or whether resort must not be had to equity, guare ?

Assumpsit. The writ urns dated January 16, 1851, and contained three counts. The first was for $2000 for interest due and owing from the defendant to the plaintiff, on the 16th day of January, 1851. The second was upon a promissory note, dated June 1, 1849, for $200, payable to the plaintiff or order, on demand, with interest. And the third was for $5000 alleged to be due to the plaintiff, January 1, 1851, for so much money before that time had and received by the defendant to the plaintiff’s use, and for so much paid, laid out and expended by the plaintiff for the defendant, at his request, and for goods, wares and merchandize sold and delivered by the plaintiff to the defendant. The writ summoned the defendant, Weare Tappan, to answer to the plaintiff, John W. Tappan, in a plea of the case, and the promises and undertakings were all alleged to have been made to the plaintiff in his individual character. There was no mention in the writ of the estate of John Tappan, nor any allegation of any obligation or undertaking to any one except the plaintiff. On the 7th of April, 1851, the plaintiff filed the following specification of his demands : “ Sullivan, ss. February term, court of common pleas.— Tappan v. Tappan. This action is brought to recover the amount due on certain promissory notes, signed by the defendant, and payable to the plaintiff or his order, on demand, and all with interest annually, and more particularly described as follows: One note, dated June 1, 1849, for two hundred dollars, on which interest is indorsed to June 1,1850. One, dated May 22, 1847, for two hundred dollars, on which the interest is indorsed to May 22, 1850. And one, dated March 6, 1850, for one hundred dollars.” On the 7th of May, 1852, the plaintiff filed a further specification, as follows: “ Sullivan, ss. Court of common pleas, February term, 1852. John W. Tappan v. Weave Tappan. This action is brought to recover a promissory note, dated May 22, 1847, for two hundred dollars, payable to the plaintiff, or order, on demand, with interest annually, and signed by the defendant. Also, one other promissory note, dated June 1, 1849, for two hundred dollars, payable to the plaintiff, or order, on demand, with annual interest, and signed by the defendant. Also, one other promissory note, dated March 6, 1850, for one hundred dollars, payable to the plaintiff, or order, on demand, with interest annually, and signed by the defendant. Also, one hundred and sixty-five dollars and nineteen cents, for so much money had and received by the defendant to and for the plaintiff’s use, in 1846, of one Theodore French, administrator of the estate, which was of William A. Kent, late of Concord, in the county of Merrimack, deceased. Also, four thousand eight hundred dollars for so much money had and received by the defendant to and for the plaintiff’s use, before the date of the plaintiff’s writ, on the following described promissory notes of the plaintiff, (which said notes were received by the defendant, January 1, 1840, as per the receipt, in writing, of the defendant of that date :) Note against Samuel Jackman and others, for $250; Note against Allen Cressey and others, for $150; Note against Jabez Sawyer and others, for $200; Note against Jesse A. Maxfield and others, for $200; Note against Cyrus Cressey and others, for $500; Note against Samuel Presley and others, for $300; Note against Moses Styles and others, for $250 ; Note against Converse Nichols and others, for $100 ; Note against A. F. Cressey and others, for $250; Note against Daniel Marsh, jr, and others, for $100 ; Note against Nathaniel A. Davis and others, for $600; Note against Anthony Colby and others, for $116,94 ; Note against Jeremiah Paige, jr., and others, for $400; Note on W. Sawer and Brown affairs, for $300.” After the filing of the last specification, the defendant pleaded the general issue, and gave notice of set-off, as follows : “ And the plaintiff will take notice that on trial of the above issue, the defendant will insist on and give in evidence, by way of set-off, the account or demand herewith exhibited, amounting to fifteen thousand two hundred and sixty-seven dollars and sixty-five cents, and prays that the same be allowed him, and judgment for the same, and for whatever balance may be due him, and for his costs. Weare Tappan. John W. Tappan to Weare Tappan, Dr. To journeys to Newport and Claremont, and time and expenses in services as executor or agent relating to the estate of John Tappan, late of Claremont, deceased, from October 17, 1837, to January 23, 1841,.......................... $36,50 1841. January 23. To cash, two hundred and twenty-three dollars and two cents, so much money had and received by the plaintiff to the defendant’s use, advanced and paid by the defendant to the plaintiff, under a mistake,....... 223,02 February 2,1842. To cash, two hundred and twenty-three dollars, for so much money had and received by the plaintiff to the defendant’s use, as above, under a mistake,..................... 223,00 1843. January 31. To cash, two hundred and twenty-three dollars, so much money then had and received by the said plaintiff to the defendant’s use, paid to the plaintiff by the defendant under a mistake,........................... 223,00 1844. January. To cash, two hundred and twenty-three dollars and two cents, so much money had and received by the plaintiff to the defendant’s use, paid to the plaintiff by the defendant under a mistake,.................. 223,02 To bill of cost and execution against George Kent, March term, court of common pleas, Merrimack county, 1844,..... 13,42 1845. March 6. To cash, two hundred and twenty-three dollars and two cents, so much money had and received by the plaintiff to the defendant’s use, advanced and paid to the plaintiff by the defendant under a mistake,............... 223,02 1846. March 12. To cash, two hundred and twenty-three dollars, so much money had and received by the plaintiff to the defendant’s use, paid by the plaintiff to the defendant under a mistake,.................................. 223.00 1847. March 12. To cash, two hundred and twenty-three dollars, so much money had and received by the plaintiff from the defendant to the defendant’s use, advanced and paid to the plaintiff by the defendant under a mistake,.... 223.00 1848. April. To cash, two hundred and twenty-three dollars, so much money had and received by the plaintiff to the defendant’s use, paid to the plaintiff by the defendant under a mistake,. 223.00 1848. To retainer on an indictment plaintiff for perjury, Sullivan county,.................... 25,00 1849. To fifteen hundred and sixty dollars, (interest) piad by the defendant to the estate of said John Tappan, deceased, on account of old Rogers and Straw demands, for which John C. Tap-pan and R. M. Tappan have deed of two tracts of land, one fifty acres, and one fifty-four acres, in the westerly part of Warner,......... 1560.00 1849. To costs and expenses in carrying on suits at law and in equity, on account of said estate, against David Heath and Benjamin Evans, from 1830 to August, 1847,...................... '3200,00 To interest on moneys advanced from time to time in the above, to counsel, to witnesses, and for copies of depositions, &c.,................... 725.00 To two and one half per cent, commission as executor or agent, on sixty-one thousand dollars of said estate,................................ 1525.00 1849. September 11. To cash,............... 129,42 December 31. To board of Ralph M. Tappan from June 18, 1849, to December 31,1849, at 1,75 per week, 29 weeks, §50,75 Cr. Nov. 1849. By a second hand floor cloth,.............................. 3,00 - 47,75 1850. July 11. To cash sent by stage driver,... 100,00 To board of R. M. Tappan, and washing, from December 31, 1849, to January 16, 1851, at 2,25 per week,................................. 121,50 To cash, six thousand dollars, for money had and received by the plaintiff since October 17, 1837, to the defendant’s use, for money paid, laid out and expended by the defendant for the plaintiff, at his request, and for commissions, and interest of divers sums of money due and owing from the plaintiff to the defendant,................ 6000,00 $15,267,65” The case was committed to an auditor, who made report as follows: The auditor being first duly sworn, having given notice to the parties that he would attend to the duties of said appointment on the 9th day of September, A. D. 1853, at 9 o’clock A. M., at the Tremont House, in Claremont, having attended at the said time and place, and heard and considered the evidence and allegations of the parties, reports as follows: He finds due to the plaintiff the amount of the three notes first described in his specification, and the interest according to the tenor thereof. As to the other two claims in the plaintiff’s specification named, the auditor makes the following statement of facts: The will of John Tappan was proved Oct. 17, 1837, and John W. Tappan and Weare Tappan, the parties in this action, were the executors named in the will. The will contains the following clauses : “ I also give to the said Weare Tappan and John W. Tappan, in trust, the sum of ten thousand dollars, to be made permanent and secure by mortgages on real estate or otherwise, as said trustees may consider most advisable ; the interest of said sum to be disposed of by said trustees in manner following, to wit: two hundred dollars to be paid annually to my wife, Sabrina Tappan, so long as she shall remain my widow, and no longer, and the proceeds of the remainder of the interest of said sum of ten thousand dollars to be paid to my said son, John W. Tappan, or his heirs, annually, or oftener, should it be considered advisable and necessary, during the natural life of my son John W. Tappan ; and at his decease, it is my will and intention to give the said sum of ten thousand dollars, in trust, to my grandchildren, in equal proportions. “ Item — All the rest, residue and remainder of my estate, whether real, personal or mixed, in Claremont aforesaid, wheresoever being, after payment of my just debts, I give, bequeath and devise to my son John W. Tappan.” Letters testamentary were granted to Weare Tappan and John W. Tappan, the executors named in the will, Oct. 17, 1837, who gave a bond, in the usual form, to pay debts and legacies, with one surety only. The probate court, in March, 1851, revoked the letters testamentary before granted to Weare Tappan. John W. Tappan filed in the probate court a new bond, in the usual form, to pay debts and legacies, with two sureties, dated April 2, 1851. Sabrina Tappan, wife of the testator, died in the year 1840. John W. Tappan was the only child and heir-at-law of John Tappan. John W. Tappan settled his account as executor, May 21st, 1851, and has paid all the debts, legacies and funeral charges of the testator. As to the fourth item of the plaintiff’s specification, the auditor finds that in 1846 the defendant, as executor of the will of John Tappan, received the sum of $165,19 of Theodore French, administrator de bonis non of the estate of Wm. A. Kent, and that the plaintiff should recover that sum, and the interest thereon, from the date of the -writ, if the court shall hold that he is entitled to the same in this action upon the foregoing statement of facts. And as to the last item in the plaintiff’s specification, the auditor finds that the defendant gave to the plaintiff a certificate in words as follows : “ January 1, 1840. I hereby certify that I have in my hands and possession, as one of the executors of the last will and testament of John Tap-pan, late of Claremont, deceased, the following notes, or the avails of them, being part of the trust property mentioned in the will of said deceased” — and then are enumerated the notes last named in the plaintiff’s specification, the principal of said notes amounting to the sum of $3716,94, that the defendant paid the interest annually on said amount to the plaintiff^ from the date of said certificate to January 1,1848. Also, that the defendant paid on the same, Sept. 11,1849, the sum of one hundred and twenty-nine dollars and forty-two cents, and on July 11,1850, the sum of one hundred dollars. That the said sum of $3716,94 is a part of the $10,000 in trust, referred to in the clause of the will first quoted. The auditor finds due to the plaintiff, from the defendant, so much of said sum of $3716,94, and of the unpaid interest, as the court shall hold that the plaintiff is entitled to recover in this action, upon the foregoing statement of facts. As to the defendant’s set-off, if the court shall hold, upon the foregoing statement of facts, that the first item is not barred by the statute of limitations, .and that the defendant is entitled to recover the same in this action, he finds the same due from the plaintiff to the defendant. Otherwise he disallows it. As to the three items of $223,02 each, and the five items of $223 each, if the court shall hold that the defendant is entitled to recover the same upon the preceding statement of facts, and that the same are not barred by the statute of limitations, the auditor allows them, with such interest as the court shall order. Otherwise he disallows them. The auditor disallows the item of $13,42. He allows the item of $25. He disallows the three items of $3200, $725 and $1525. The two items of $129,42 and of $100 he disallows here, as they are allowed as interest paid on the trust fund of $3716,94, unless the court shall hold, upon the foregoing statement of facts, that the same should be paid back. In that case, he allows them, with such interest as the court shall order. The two sums of $47,75 and $121,50, the auditor allows, with interest from the time of filing the set-off. He disallows the last item of $6000. The item of $1560, in the defendant’s set-off, the auditor disallows.