Towne v. Ammidown

Shaw C. J.

delivered the opinion of the Court. This is a bill in equity, brought by Salem Towne, in his own right, and by Barton, Weathered and Davis, executors of the will of Abijah Davis, against the defendant Ebenezer .D. Ammidown, as one of the heirs or devisees of the estate of Calvin Ammidown deceased, alleging that he has received assets by descent or by will, sufficient' to pay their debt. The case is brought before the Court upon the bill, and an agreed statement of facts.

There are considerable defects in these proceedings, both in form and substance, and especially in the want of proper parties. But as the Court are all agreed upon the principle which is decisive of the case, they have thought it unnecessary to subject the plaintiffs to loss of time and expense to amend proceedings which, in whatever form they come, must be unavailing. At the same time it may be proper to remark, that the Court consider it very important, especially in the present state of our equity system, to encourage great correctness and accuracy, even in matters of form. They tend greatly to promote simplicity and clearness in presenting all questions in due order, to prevent surprise and confusion, and therefore to secure the just rights of all parties.

It appears by the facts agreed, that in 1816, Jonathan Davis and Calvin Ammidown were duly appointed executors of the will of Ebenezer Davis, and upon that occasion gave a bond in comrribn form, to the judge of probate, in the penalty of $200,000, on which bond, the plaintiff Salem Towne, and the testator of the other plaintiffs, Abijah Davis, were sureties By his will Ebenezer Davis bequeathed to his granddaughter, Cynthia M‘Lane, $2000, to be paid by his executors, on the day of her marriage ; but if not married, then to pay her the interest of that sum, after her arriving at the age of eighteen durmg her life, and then to pay the principal sum over to others named. Cynthia M‘Lane continued entitled to receive such interest annually, till after the removal of Jonathan Davis, hereafter stated. In 1817, the executors settled a joint account, in which they were allowed, in addition to another sum, not now material, to retain in their hands the sum of $2000, and were directed so to retain it, under the provision of the will, for the use and benefit of Cynthia M‘Lane. After this, Calvin Ammidown, one of the executors, died, having in his hands about $1600 ; the defendant Ebenezer D. Ammidown was the executor of his will, and being called on by Jonathan Davis, the surviving executor of the former will, Ebenezer D. Ammidown paid over to Jonathan the balance in his hands and took his receipt therefor, with a full discharge. The interest continued to be paid by Jonathan Davis, the surviving executor, to Cynthia M‘Lane, for several years, when he became insolvent, and was removed from office, and never accounted for or paid over the principal sum. Whereupon the plaintiffs, the one as surety, and the others as executors of the will of a deceased surety, being called upon by the administrator with the will annexed, paid the sum of $2000, as such sureties. More than four years elapsed, after the defendant Ebenezer D. Ammidown took out letters testamentary, on the will of his father Calvin Ammidown, before the foregoing payment was made. This suit in equity is now brought against the defendant, not as executor, but as heir and devisee having received assets from his father, as for a debt due from the father, but for which the cause of action did not accrue in season to be prosecuted against the executor.

It has been contended on the part of the defendant, that the plaintiffs, as sureties on the original bond, paid the $2000 for the use of Cynthia M‘Lane, to the administrator with the will annexed of Ebenezer Davis, in their own wrong, because they were not liable to pay it. The ground is this ; that as the executors had been allowed and directed to retain the $2000, to answer the purposes specified in the will, they became speeia. trustees, they ceased to be responsible as executors, and so their sureties ceased to be responsible for the administration of such special trust. But this position is not tenable. They were bound to execute this trust qua executors. The mannei in which this sum was noticed in their joint account as executors was intended, not to exempt them .from further liability to account and pay over, but to show that it was a sum not then to be called for, but to be retained for the purposes of the will The condition of the bond is, to administer the estate accord ing to the will. One of the directions of the will was, to hold this fund of 02000, till the legatee should marry or die, and in the mean time pay her the interest of it. It was their duty as executors to perform this trust; the sureties, by their bond, undertook that they should do it; and the non-performance is a breach. This poiht we now consider as settled by authorities. Hall v. Cushing, 9 Pick. 397 ; Dorr v. Wainwright, 13 Pick. 328.

Then the question arises, whether upon the facts stated any action, either for indemnity or contribution, can be maintained by the plaintiffs for money paid by them as such sureties, against the estate of Calvin Ammidown, an original joint executor, and principal obligor.

It is very clear that up to the time of the death of Calvin Ammidown, there was no default of the executors and no breach of the bond. Then the question arises in this form, whether the representatives of one joint executor, are in any form responsible for the mal-administration of the survivor happening after the decease of the former. We think it is impossible to distinguish this case from that of Brazier v. Clark, 5 Pick. 9(5, which was ably argued and fully considered, and in which it was held that such an action could not be maintained.

There are two views, in which the supposed liability of the estate of the deceased executor may be considered. The first is, that the two sureties are liable for the two principals jointly, and by force of the joint contract the principals are liable for each other, and of course liable over to the sureties for any mal-administration of either, and that this results from the nature of a penal bond, on condition, which creates a debt at the time of its execution, defeasible by matter subsequent. This was fully considered in the case cited, in which it was held, that such joint debt was determined by the death of one o the joint principal obligors, before a breach of the condition

The other ground is, that by force of the contract each executor becomes surety for the other, that by the severance of the trust of executorship by the death of one, his estate remains liable for the future acts of the survivor, like that of any other deceased surety. There is certainly some plausibility in this view. The point however was distinctly considered and settled in the case cited. It was considered, that as the party had become bound as principal, it would be changing the character of his obligation, to hold him as surety, and to charge his estate with the consequences of that relation.

It was somewhat urged, in the argument, that this case is distinguishable from the case cited, because in that case, the executor was considered chargeable with waste, which was a tort. But upon comparison there is no difference in principle between the cases. There the executor failed to sell out certain stock, at the time he ought to have done it, by which the estate suffered a loss ; an error of judgment, or a neglect, for which he was liable. Here the executor spent the money instead of investing it, so that it was not forthcoming when demanded. What is the difference ? It is in effect waste in both cases. But suppose it were otherwise, one a positive tort, and the other a mere neglect; each is a breach of the bond, and it is in that respect only that the sureties are liable at all. The case cited therefore is decisive of the present; and the Court are of opinion, that the heirs and devisees of Calvin Ammidown are not liable to the plaintiffs, either as principals for the whole sum paid, or as co-sureties, for contribution.

Bill dismissed.