Le Baron v. Fauntleroy (2 Fla. 276, 1848)

Baltzell, J.,

delivered the following opinion :

On the seventh day of April 1840 probate was made by the County Court of Escambia of an instrument of writing purporting to be the last will and testament of George L. Fauntleroy by which he bequeathed to his widow the sum of fifty thousand dollars, a piano, some plate and a set of china, and the will was ordered to be annexed to the letters of administration previously granted toLo Baron there being no executor named in the will.

On tlio 25th and 31st of May, of the same year, Le Baron acting in obedience to this will and under the probate of the Court paid to Mrs. Fnuntleroy $50,000 in notes and bonds, and a sum equal to the piano and the other a ’.'tides. '

In October 1841, the next of kin the present complainants applied to ihe County Court for a revocation of the probate, which was refused. They appealed to the Superior Court who revoked and set it aside declaring the will invalid. An appeal was taken to the Court of Appeals who affirmed the judgment of the Superior Court in 1845.

This suit is instituted against the administrator and against Col-quitt who intermarried with Mrs. Fauntlcroy, complaining of this payment as a devastavit and insisting not only upon the disallowance of the sum paid to the widow, but of the forfeiture of all interest by her in the estate of her husband.

In support of this position complainants rely upon the difference assumed in the books between acts of an administrator or executor regarded as voidable and those that are void, contending that the action of Le Baron in the payment to Mrs. Fauntleroy was void.

“ Whether the acts of an administrator or executor whose probate or letters are revoked, are valid or not, depends it is said upon the character of the grant. The distinction is between grants that are void and such as are voidable. If the grant be of the former description the mesne acts of the executor or administrator done between the grant and its revocation shall be of no validity.” 1 Will, on Executors, 400. Toller, 120-8.

“ But if the administration be voidable only, all lawful acts of ' the first administrator shall be valid.” 1 Will., 402. Toller, 129.

“ It may be laid down as a general rule that where the grant is in derogation of ihe right of the executor it is void, but where the administration is granted by the proper jurisdiction and is only in derogation of the next of kin or residuary legatee it is merely voidable.” 3 Bacon Ab., 50. 1 Will., 403-4.

Toller says “ in all such instances the administration is a mero nullity. The executors interest, the ordinary is incapable of divesting.” Toller 120.

It seems according to this that if the grant be in derogation of the interest of the next of kin this does not make the action of the administrator void. Let us enquire as to the interest of the executor which is attended with such important consequences.

1st., He had a right to retain for a debt due to him in preference to all other creditors in an equal degree. Toller, 295.

2d. If indebted to his testator his appointment and acceptance of the office shall operate as a release and extinguishment of the debt. Toller, 347.

3d. After payment of funeral expenses, testamentary charges, debts, and legacies, if there be a surplus it shall vest in him beneficially. 2 Will., 898. Toller, 351.

This was the law in former times but by our statute this extin-guishment is expressly done away, so is the right of retainer by the same act providing for a pro rata settlement of all demands which may be rendered in according to law, whilst there is no instance of a claim to the surplus with us. Duval, 188. Thus clearly placing an executor on the same footing of an administrator, making him alike with the administrator an agent or officer merely for the settlement of the estate with no further interest than that of commissions and fees.

It will be thus perceived why a grant in derogation of the right of the executor was so highly esteemed in the early decisions, yet when the cases supporting this doctrine, to wit, Parten and Barsdens, case 1 Mod., 213—Dr. Henslow’s case, 9 Co., 37, B—Abram vs. Cunningham, 2 Lev., 182—Wankford vs. Wankford, Salk., 307—Graysbrook vs. Fox, Plow., 275, were cited before Lord Redesdale in Doyle vs. Blake, he said that “ some of these old cases coulcf scarcely be supported on principle, they were decided whilst a great jealousy of the Ecclesiastical Court prevailed. That the meaning of the modern determinations was that an administration granted after an executor having acted in pais might be repealed by an application to the Ecclesiastical Court, not that it was a mere nullity unless as a protection to the executor. That it was true an executor having acted could not discharge himself from liability by such an administration being granted to another, but that a debtor to the fund could not in answer to a suit by such administrator set up the act in pais of the executor against his renunciation, in order to delay or prevent a recovery by the administrator. That the administration was void only as a protection to the executor, but in no other sense.” The case before the Court was an illustration of these remarks.— Blake and Alley were appointed executors and after performing some acts which the chancellor considered as amounting to an action by them in that character renounced in favor of a third party to whom administration of the will was committed, he becoming insolvent, they were held liable for his administration as if he had been their agent. 2 Sch. and Lef., 246.

Williams on Executors adopts these remarks, and adds, “ so if the executor has acted, and the ordinary not knowing it, commits administration to another, though the administration may be revoked, and the executor compelled to prove the will, yet the grant of administration, with the will annexed, until so revoked is valid.” 1 Williams on Executors, 162, and notes.

This view is sustained by the case of Allen vs. Dundas, which Was to recover from a debtor a debt which he had paid to an executor, under probate of a forged will afterwards revoked. The position taken was as in this case, that the probate was only evidence of right ,• that the executor derives his authority from the will, and not from the probate, and that there was no payment. The Court, however, said: “ Here the defendant acted under the authority of a Court of law. Every person is bound to pay deference to a judicial act of a Court having competent jurisdiction. Here the spiritual Court had jurisdiction over the subject-matter, and every person was bound to give credit to the probate till it was revoked.” Bul-ler, Justice, said, “ I am most clearly of opinion that it is a judicial act, and that the probate is conclusive till it be repealed, and no Court of common law can admit evidence to impeach it.” 3 T. R., 129.

So also in the case of Digby & Hollis vs. Wray, B. R., 25 & 26, Car. 2, the plaintiff as executor had judgment against the defendant, and then there was a suit in the spiritual court to repeal the letters, and the defendant prayed a stay of execution till the matter was tried in the spiritual Court — the Court denied it, for the reason thai if a debtor pay money on a judgment and execution to one who is executor de facto, having a probate under seal of a prerogative Court, he shall never be forced to pay it again. 3 Bac. Ab., 51.

To the same effect are decisions of the Supreme Court of South Carolina. In Benson, administrator, vs. Price & Byers, the Court say, when an administration which has been granted is properly revoked, the latter administrator may sue the former for money had and received, or in trover for any goods remaining in his possession, by him converted, or not duly administered. Any other doctrine would be fraught with the most monstrous inconvenience. 2 N & McC.. 577.

In Foster vs. Brown, administration had been obtained by a fraudulent suppression of the will, in which the executor as well as the administrator concurred — it was held that all acts done in a due and legal course of administration are valid and binding on all interested, although it be afterwards revolted, nor can the manner of obtaining the administration, whether fairly or fraudulently, yary the question. 1 Bailey, 221.

In Price vs. Mesbit, allusion was made to these authorities, and their application to the case, which was that of a will set up after grant of previous administration enforced. 1 Hill, 461.

So also in Pennsylvania, an opinion was once entertained that payments made to one who had obtained probate of a will which was afterwards repealed were void, and in support of it, 1 Roll. Abr. & Con. Rep., 152, were cited, but those cases have been overruled. The granting probate is a judicial act, and while it remains in force cannot be contradicted. Appeal of Peebles, 15 Sergeant and Rawle, 89.

But there is another consideration showing the entire inapplicability of the rule to the present case, even conceding it to be in operation, when derogatory to the rights of an executor. There was no executor by this will possessed of rights to be affected by the action of Le Baron. He was himself filling the office of executor, having been appointed administrator, with the will annexed, and continued administrator after revocation of the probate.

It is contended that the acts of paying and receiving debts by an executor or administrator, acting under a grant subsequently revoked, differ from the payment of a legacy in this, that the former relate to rights pre-existing before the grant — whilst the latter, resting upon a void will, derives its sole authority from the probate. The propriety of the distinction is not perceived. Indeed, to allow it would be to assert that the probate is a judicial act, available to a legatee or creditor of the estate against the officer, but impotent for his protection. This would be to declare a part of his duty as obligatory, and hold him discharged from the remainder. We cannot, however, draw such a distinction. All the duties of the executor or administrator, resulting from the probate of the will, or from the letters of administration, with the will annexed are alike imperative and obligatory. “ An executor is he to whom another man commits, by will, the execution of that, his last will and testament, and the duty of an administrator with the will annexed, is very little different from that of an executor.” 2 Black., 503. “ The executor is hound to perform a will.” Ib., 507.

“ All administrators, with the will annexed, shall make oath or affirmation before the Court or Judge that they will well and truly perform, the last will and testament of the testator, and pay his just and lawful debts, &c.” Duval’s Com. 170.

“ A probate is conclusive both in Courts of law and equity, -as to the appointment of the executor, and the validity and contents of a will so far as it extends to personal property.” 1 Williams, 368. Toller, 76.

“ The probate is conclusive as to every part of the will in respect of which it has been granted.” Ibid, 369. 4 Rand., 538. 2 Ibid, 194.

The will being established by competent judicial action, and this administrator having sworn to perform it, what was his course ?— Obviously to pay debts first, if there are none, then to pay legacies, and distribute the residuum. If the assets were in bonds and notes, they should have been collected as early as possible, and paid ov.er; but, if the legate&preferred taking the burthen of collection, we see no objection, but on the contrary very great propriety in the executor permitting it.

It was clearly a matter of duty on the part of this administrator to pay legacies under the will as much as to receive debts, and if there be a discharge in the one case, we are at a loss why it should not operate in the other. In the case under consideration there was an express mandate of the Court to pay this legacy — an adjudication upon the very point; the very object of the probate, its almost entire object was to procure its payment, and the officer was bound as well by his office as by the solemn obligation of his oath to pay it. To refuse payment would have been alike inconsistent with both of these. To enforce a performance of duty by such injunction, and then subject the officer to peril of his fortune, if through a diverse action of the parties interested, or a change of opinion as to the law by the Courts whose agent he was, would be in our opinion the height of injustice. In the case of the debtor protected as we have seen by the probate, as a judicial act there was no mandate, but mere obligation to pay. If the comparative loss is to be regarded, distribu-tees may be as much affected by improper and illegal receipts, and payments by an executor or administrator, as by the improper payment of a legacy. The remarks of the Court in Allen vs. Dun-das, are so appropriate as to deserve a more special reference on this branch of the subject. Ashurst, J., said “1 am of opinion that the plaintiff has no right to call on the defendant to pay this money a second time, which was paid to a person who had at that lime a legal authority to receive it. It is admitted that if he had made this payment under the coercion of a suit in a Court of law, he would have been protected against any other demand for it, but I think that makes no difference. For as the party to whom the payment was m^de had such authority as could not be questioned at the time, and such as a Court of law would have been bound to enforce, the defendant was not obliged to wait for a suit, when he knew that no de-fence could be made to it.” 3 T. R., 129.

If there were yet doubts, we think there is express authority in support of the view we have taken. In Hele vs. Stowel, the husband devised his lands to his wife during the minority of his son, with' power to make leases to pay debts, &e., and dies &c., the wife enters and takes the profits, and then marries a second husband, and he lives some years and takes the profits and dies, and the wife continues to take the profits, &c. The son attains his age, and proves a revocation of the will, and prays an account. The account was ordered. She was to answer as to what her husband took as in a devastavit — the wife having no notice of the revocation had jjaid legacies charged on the lands by will. Ordered that she be allowed those. Cases in Chancery, 126, quoted 8 Bac. Ab., 50, n. 3. 1 Lomax on Ex., 190. Inaccurately stated in Williams on Ex., p. 406.

We do not percieve that there is any thing in the position that Le B