Where there are two executors in a will, it is clear that each
has a right to receive the debts due to the estate, and all other
assets which shall come into his hands, and he is answerable for
the assets he receives. This responsibility results from the right
to receive, and the nature of the trust.
A payment of the sums received by him to his co-executor will
not discharge him from his liability to the estate. He is bound to
account for all assets which come into his hands and to appropriate
them according to the directions of the will.
Executors are not liable to each other, but each is liable to
the
cestuis que trust and devisees to the full extent of
the funds received by him.
The removal of an executor from a state in which the will was
proved and in which letters testamentary were granted does not
discharge him from his liability as executor, much less does it
release him from his liability for assets received by him and paid
over to his co-executor.
The appellee, with one James McMorris, was by the will of Aaron
Cates of South Carolina made on 8 February, 1816, and proved on the
15th of the same month, appointed executor of the will. Letters
testamentary were granted to both the executors.
The will directs the estate of the testator to be sold, and
after the payment of the debts directs the executors to invest the
residue of the proceeds of the estate in stocks for the benefit of
certain persons named in the will and who are appellants in this
case.
The estate was sold and the accounts were settled by the
executors with the ordinary. The executors failed to invest the
proceeds of the sales in stocks. This bill was filed to compel a
performance of the directions of the will by the appellee.
The defendant, in the circuit court, stated in his answer that
the monies of the estate were not invested in stocks in consequence
of the opposition of one of the legatees, a complainant in the
bill, and because the sums collected were not sufficiently large.
That although at the time of the taking out the letters
testamentary he was a resident of South Carolina, yet that in 1819
he removed to Alabama, having first delivered over to his
co-executor, McMorris, all the assets of the estate which had ever
come to his hands, and took the receipt of the co-executor for the
same, which receipt he filed with the court of ordinary which had
granted the letters testamentary, and surrendered to the
co-executor the exclusive management of the estate of the testator.
McMorris had become insolvent.
The case was heard on the bill, answer, and the receipt, and the
circuit court ordered the bill to be dismissed. From this decree an
appeal was prosecuted to this Court.
Page 39 U. S. 167
MR. JUSTICE McLEAN delivered the opinion of the Court.
The complainants, who represent themselves to be the devisees of
Aaron Cates, deceased, who, on 7 February, 1816, made his will in
which he required all his estate, both real and personal, to be
sold at public auction by his executors on a credit of one, two,
and three years, the purchaser to give two good freehold securities
and a mortgage on the property to secure the payments. Three
bequests, of one hundred dollars each, were made to certain
individuals, to one of whom he gave his wearing apparel. After the
payment of these bequests, his funeral expenses, and ten percent on
monies collected by his executors, he directed that his executors
should vest the entire balance, including the net proceeds of his
estate then in their hands, in bank stock or in shares or capital
of such companies or corporations as in their judgments should be
most proper and productive, in trust for certain uses and subject
to certain restrictions, and he appointed
"his friends, Anderson Crenshaw and James McMorris, executors,
and on the death of either, the survivor was to be sole executor,
with power of appointing, either by deed or by will, a proper
person to carry into effect the provisions of the will."
On the death of the testator, the executors proved the will in
the ordinary's office for Newberry District in the State of South
Carolina, and qualified as executors. They caused the property to
be appraised and sold, and made returns thereof to the above
office; the sale bill, they allege, amounted to the sum of
twenty-five thousand one hundred and forty-four dollars. And the
complainants
Page 39 U. S. 168
state that at the time of his decease, the testator had a
considerable sum of money on hand, and that many debts on accounts,
notes, bonds, and mortgages, were due to him, and afterwards came
into the hands of his executors.
The bill alleges that the defendant, one of the executors, some
years since removed from the State of South Carolina to the State
of Alabama without vesting or causing to be vested any part of the
funds belonging to the estate, in the hands of the executors. That
the defendant left the State of South Carolina without settling the
estate or accounting for the funds which came into his hands; that
McMorris continued to act as executor, and that there is in the
hands of the executors about the sum of sixteen thousand dollars,
funds of the estate, and that they have neglected and refused to
account for and pay over the same. That McMorris is insolvent, and
the complainants pray that the executors may account, &c.
The defendant, Crenshaw, in his answer admits that Aaron Cates
made the will, as stated in the bill, all that it was proved; that
he was qualified with McMorris as executor, made the returns to the
ordinary as stated, but does not recollect the amount of the
estate. He states that a part of the estate sold by the executors
was recovered from the purchasers by others, and that debts to a
considerable amount were paid by the executors. He admits that in
the year 1819, he removed to Alabama, and that the executors
previous to this time made no investment of the funds, because the
amount on hand was small and Mrs. Wadlington, one of the legatees,
and only daughter of the testator, and who was the natural guardian
of her then infant children, who were the principal legatees,
opposed such investment by every means in her power.
And the defendant states that before he left South Carolina, he
surrendered up and delivered over to McMorris, his co-executor, all
the assets of the estate which had come to his hands, including
cash, evidences of debt, and other liabilities, and took from him a
receipt, which is made a part of the answer. That until this time,
he and his co-executor had made correct returns to the ordinary of
their proceedings, and that since then he has not intermeddled with
the estate.
The parties agreed to go to a hearing on the bill and answer,
and that the receipt referred to in the answer given by McMorris to
the defendant, should be considered as duly proved.
On the bill, answer, and receipt, the question arises whether
the defendant is discharged from the trust under the will.
Where there are two executors in a will, it is clear that each
has a right to receive the debts due to the estate and all other
assets which shall come into his hands, and he is responsible for
the assets he receives. This responsibility results from the right
to receive, and the nature of the trust, and how can he discharge
himself from this responsibility?
In this case, the defendant has attempted to discharge himself
from responsibility by paying over the assets received by him
to
Page 39 U. S. 169
his co-executor. But such payment cannot discharge him. Having
received the assets in his capacity of executor, he is bound to
account for the same, and he must show that he has made the
investment required by the will or in some other mode and in
conformity with the trust, has applied the funds.
One executor having received funds cannot exonerate himself and
shift the trust to his co-executor by paying over to him the sums
received. Each executor has a right to receive the debts due to the
estate and discharge the debtors, but this rule does not apply as
between the executors. They stand upon equal ground, having equal
rights and the same responsibilities. They are not liable to each
other, but each is liable to the
cestuis que trust to the
full extent of the funds he receives.
Douglass v.
Satterlee, 11 Johns. 16.
Fairfax's Executors v.
Fairfax, 5 Cranch 19.
The removal of the defendant from the state did not render him
incapable of discharging his duties as executor; much less did it
release him from the assets he received and paid over to his
co-executor.
In the case of
Griffith v.
Frazier, 8 Cranch 9, this Court held
"that an executor who absents himself from the state after
taking out letters testamentary is still capable of performing, and
is bound to perform, all the duties of executor."
This was a case where there was but one executor.
The liability of the defendant arises under the laws of South
Carolina, which regulated his duties as executor. He is responsible
for all the assets of whatsoever kind which came into his hands as
executor and which he has not accounted for and paid over as
directed by the will.
The circuit court held that the facts set up in the answer, with
the receipt of his co-executor, released the defendant from his
trust and from all responsibility under it. In this the court
erred, and its decree on this ground is
Reversed and annulled and the cause is remanded to that
court with directions to have an account taken of all the assets
which came into the possession of the defendant as executor and to
enter a decree in favor of the complainants against him for the
amount he shall have received and not accounted for to the ordinary
and paid over in conformity with this opinion.
