Woolley v. Price

Bryan, J., delivered the opinion of the Court. James B. Palmer of Queen Anne’s County died in the year eighteen hundred and eighty-five possessed of a considerable amount of personalty. He left a last will and testament which was duly admitted to probate. By his will he left one-half of the residue of his estate to his widow and the other half to B. Palmer Keating, in trust for his brother George S. Palmer for life, with remainders over upon certain contingencies, and he appointed the widow and Keating executors.

The executors received letters testamentary, and gave bond in the usual form. Mrs. Palmer, the widow, died in March, eighteen hundred and ninety-four. Before her death no inventory of the estate had been returned to the Orphans’ Court, and there were no proceedings in the ¹⁷⁸ Court to show how the duties of the executors had been discharged. After the death of Mrs. Palmer, the surviving executor, B. Palmer Keating, returned an administration account, which showed a sum of more than twelve thousand dollars as the moiety of the residue bequeathed to him in trust.

After the passage of this administration account, Keating was by the decree of a Court of Equity removed from the trusteeship, it being proved that he was insolvent; and William W. Busteed was appointed trustee in his place, with authority to take such legal and equitable proceedings against the executors of James B. Palmer and the sureties on their official bond as might be necessary and proper for the recovery of the funds belonging to the trust. William K. Sparks was one of the sureties on the testamentary bond ■of the executors of James B. Palmer. He died in the year eighteen hundred and ninety, leaving real and personal •estate which he disposed of by last will and testament. It is alleged that all the other sureties are insolvent.

A bill in equity was filed by Busteed, trustee, against the executors of Sparks, his devisees and legatees, for the purpose of ■enforcing against them the alleged liability of the executors of Palmer for the legacy to B. Palmer Keating in trust for the persons named in his will. A demurrer was filed to the bill, and it was dismissed. After the dismissal of the bill, the appellants by leave of the Court became parties plaintiff, for the purpose of prosecuting this appeal. The cardinal question in the case is whether the executors of Palmer continued responsible for the legacy to Keating, as trustee, or whether it is to be considered as paid to Keating, in his capacity as trustee at the expiration of the time appointed by law for the settlement of the estate, or after-wards.

It is well settled that if the legacy had been to both of the executors as trustees, there would have been by operation of law a transfer of the fund to them as trustees, and as they would have ceased to hold it as executors, their testamentary bond would have been discharged. State v. Cheston, 51 Md. 352 . The principle is stated that as they ¹⁷⁹ would represent different characters, they could not pay the money to themselves and that in case of refusal there was no person who could enforce payment; and that, therefore, the law would by implication consider the money in their hands in that representative character which ought to receive it. It was also said that where an executor “ sustains the two-fold character of executor and guardian, the law will adjudge the ward’s proportion of the property then in his hands, to be in his hands in the capacity of guardian, after the time limited by law for the settlement of the estate, whether a final account has been passed by the Orphans' Court or not; upon the principle that what the law has enjoined upon him to do shall be considered and done, and from that time he holds the ward’s proportion of the property by operation of law, in that character in which he would be entitled to receive it upon a final completion of his trust as executor.” So in Flickinger v. Hull, 5 Gill, 60 , we find the principle stated thus : ‘ ‘Where a person in one character is debtor, and the