State ex rel. Hewlett v. Hewlett

Bartol, C. J., delivered the opinion of the Court. This suit was brought on the testamentary bond of James W. Hewlett, executor of John Q. Hewlett deceased, to recover a legacy of $5000, given by the will to Jack Q. Hewlett. The defendants filed a general demurrer to the declaration, which was sustained, and judgment being thereon entered for the defendants, the plaintiff has appealed. It appears from the averments in the declaration that the testator devised and bequeathed “ all the rest, residue and remainder of his estate” to James W. Hewlett in fee, upon the condition that he should pay to Jack Q. Hewlett the sum of $5000, upon the arrival of the latter at the age ¹⁴³ of 25 years, and the will declared that sum should be a lien or charge upon the residue of the estate so given to James W. Hewlett.

The testamentary bond was executed on the 14th day of December 1864. On the 18th day of January 1866, it appeared by the administration account passed by the executor, that there remained in his hands the sum of $16,426.34 in money, the residue of the personal estate, after the payment of all debts and charges, which by that account was passed over to, and held by him as residuary legatee. Jack Q. Hewlett attained the age of 25 years on the 26th day of June 1876. The ground of the present suit is the alleged breach of duty on the part of the executor, in having failed to cause the residue of the personal estate remaining in his hands, or so much thereof as was necessary for that purpose, to be invested under the direction of the Orphans’ Court, or some other Court of competent jurisdiction, to secure the payment of $5000, to Jack Q. Hewlett on his reaching the age of 25 years.

The only question in the case is whether the failure so to invest, was a breach of duty on the part of the executor, for which the testamentary bond is liable. It has been contended that this duty was imposed on the executor by the 10th sec. of Art. 93 of the Code ; but in our judgment that section has no application to a case like the present. Without quoting the words of the section at length, it is sufficient to say that it applies only where by the will “ money or some other thing” is directed to be paid at a distant day, or upon a contingency, and where in the meantime the legacy is not disposed of, but must, by the terms of the will, or otherwise, remain*in the hands of the executor, or the administrator c. t. a. • In such case it is made the duty of the executor,