Hindman v. State ex rel. Tosh

Alvey, C. J., delivered the opinion of the Court. The controlling question in this case arises upon the terms of the will of James Tosh, deceased, and as to the duty of the executors under the will, in respect to a legacy of $400, bequeathed to James E. Barnett, a minor, to he paid.to him on his attaining the age of twenty-one years, the interest in the meantime to he paid to two other parties. The form and terms of the gift are as follows: “ Secondly. I give and bequeath to my beloved grandson, James Ellsworth Barnett, son of Nicholas and Rebecca J. Barnett, the sum of four hundred dollars, to be p>aid to Mm when he arrives at the age of twenty-one years. “Third.

I give and bequeath to my two beloved •daughters, Rebecca J. Barnett and Margaret Ellen Nichols, the interest of the above four hundred dollars, bequeathed to my grandson, Jgmes Ellsworth Barnett, to be paid to them annually, share and share alike; and I order and direct, that in the event of the death of either of my daughters aforesaid, the whole of the interest of the four hundred dollars aforesaid, to he paid to the survivor. And I further order and direct, that in the event •of the death of both of my daughters, the said interest to he invested lor the benefit of my grandson aforesaid, and to he. paid- to him when he arrives at the age of twenty-one years.” It is admitted that the two daughters, entitled to the •annual interest of the fund, are both still living, and that ■James Ellsworth Barnett is still a minor. The executors, it seems, paid over the legacy of $400 to the guardian of the minor legatee, and that guardian, becoming insolveni, was -removed, and another was appointed in his stead; ⁴⁷⁵ and this is an action by the substituted guardian, brought upon the bond of the first, against the surety therein, to recover the legacy paid over by the executors. And the question is, whether or not the bond is -to be held liable tor the money thus coming into the hands of the guardian.

No special direction was given by the testator as to who should invest the fund, collect the annual interest, and pay it over to the daughters. But in the absence of such special direction, it was the plain duty of the executors, and no one else. The testator manifestly contemplated that the fund should he invested during the minority of the grandson, in order to raise the annual interest for the benefit of his daughters; and as the duty of investment was not imposed upon any other person, it was, by necessary implication, devolved upon the executors, as one of the duties of their office. It was an active beneficial duty to the daughters, so far as the interest was involved, and also to the grandson, for the preservation of the corpus of the fund; and being a duty attached to their office, the executors could not divest themselves of it while holding their representative relation to the estate.

They were at liberty, it is true, to apply either to the Orphans’ Court, or to a Court of equity, for direction as to the nature and mode of investment; but that does not necessarily imply that they should be released from the active duties imposed upon them by the will, or that they should be exonerated from all liability to account. The case would seem to be fully within the long settled doctrine of’ this State, as enunciated in the cases of Evans vs. Iglehart, 6 G. & J., 171 ; Hanson vs. Brawner, 2 Md., 90 , and State, use of Dittman vs. Robinson, 57 Md., 486, 495-6, with respect to the duty of the executors to invest the fund and account for the income. it is insisted on the part of the plaintiff that the legacy was paid over to the guardian by the sanction and under the direction of the Orphans’ Court, given by authority ⁴⁷⁶ exercised under Art. 93, sec. 10, of the Code; and that the executors were not only authorized to make such payment, hut are fully exonerated from all further liability in respect to such legacy. But in this proposition we cannot concur. In the first place, there is no legally sufficient evidence that the Orphans’ Court ever did, in fact, decree or direct