Ramser v. Blair , 123 Ala. 139 ( 1898 )

DOWDELL, J.

The appellee, plaintiff in the court beloAV, sued appellant as executor of the last will and testament of Jacob Ramser, deceased, in assumpsit on the common counts for money had and received for the use of plaintiff.

Item third in the will of defendant’s testator is as folIoavs : “It is my Avill and desire and I hereby give and bequeath, to my daughter Mrs. Laura Y. Blair, wife of Ed. P. Blair, during her natural life the interest on twelve thousand dollars (f12,000) of bonds of the State of Alabama, Class A; the interest thereon to be paid to her by my executors hereinafter named, as it accrues. At the death of said Mrs. Laura V. Blair, the said bonds or the proceeds thereof are to be divided equally between her children, share and share alike. It is, also, my will and desire that said bonds shall be held and reinvested on the same terms and conditions as stated in paragraph tAvo of this will, in reference to the bonds given and' bequeathed to my daughter Mrs. Pauline McNeil.”

Tlie terms and conditions referred to in paragraph two, are as follows: “Should said bonds mature during the lifetime of said Mrs. Pauline McNeil, then the proceeds of said bonds are to be reinvested, and such proceeds so reinvested are to be held in the'same manner, and go the same way as the bonds. Should said Mrs. Pauline McNeil die before the maturity of said bonds, then said bonds are not to be sold but held until maturity, and the interest thereon after her death to be paid to her children equally share and share alike.”

The will contained other similar bequests, and, also, provided for the disposition of a large amount of property under a residuary clause. The defendant was named as one of the executors, the other being M. L. Ramser, since deceased. Both of the persons named as executors qualified and as such entered upon the discharge of the duties of their office. As such executors they collected the interest on said bonds regularly, which accrued semiannually, in January and July, and paid over the same to Mrs. Blair, without any charges for commissions, up to July, 1895, since which time, the defendant has continued to collect said interest, and now claims that he is acting, not as executor, but as a trustee as to said bonds, and as such is entitled to commissions. In July, 1895, the executors made a settlement in the probate court of their administration on said estate, on which settlement a large amount was distributed by them under the decree of the probate court, under the residuary clause of the will, though all of the property contained in the will and subject to disposition under the residuary clause of was not and could not have been distributed at that time on account of the then existing conditions of a part of the estate bequeathed under the will.

The questions presented for determination are, 1st, whether an executor, as such, can be sued by a legatee in an action at law, for money had and received, and 2d, whether under the facts in this case the defendant had ceased to act as executor and was acting as trustee, and as such was entitled to commissions for collecting and paying out the interest as directed in the will.

It is clear, that the bequest of Mrs. Blair was a specific legacy. The amount was certain, or could be made certain by reference. The manner and provision for its payment makes- it someAvhat in the nature of an annuity. The duty of collecting and paying by the express terms of the will, Avas a duty imposed upon the executors named in the vvill as executors and not as trustees. There was no conveyance of the legal title to the executors in ■trust, creating them trustees' as distinguished from executors. The trust created attached as a duty to the office of executor. As a specific legacy it AAras the duty of the executor to collect and pay OArer the same, undiminished by any charges for commissions, as long as there remained other property of the estate against which such Avould be a legal and proper charge. As long as a residuum of personal property, or of real estate Avhicli under the residuary clause must be sold and converted into money, exists, no part of the expenses of an administration can be imposed upon a specific legacy.

That the legacy to Mrs. Blair AAras assented to by the executors there can be no question. They assented AAdien the first payment of interest was made by them as executors to her.

We think there can be no doubt of plaintiff’s right of action at hiAAq and that it was properly brought for money had and received. The interest collected by the executor, Avas money in his hands, which ex equo et bono belonged to the plaintiff.—Hitchcock v. Lukens, 8 Port. 333; Gause v. Hughes, 9 Port. 552; Perkins v. Moore, 16 Ala. 14; Vincent v. Rogers, 30 Ala. 471; 3 Williams on Executors, p. 2049; Code, 1896, § 344.

The case of Lowery v. Daniel, Admr., 98 Ala. 451; is distinguishable from the case at bar, ancl the cases above cited. That was a case of an administrator being sued for money had and received as such. The principle involved is quite different from that of an executor, who holds in his hands a certain fund specifically bequeathed by his testator.

It is insisted by the appellant, that after the executors made their settlement in the probate court, they ceased to hold the bonds as executors, and from that time held the same as trustees. Wé cannot assent to that proposition. There is nothing in the will from which it cap be inferred that the testator had' any intention of creating any other office than that of executor. The duties imposed by the will, are such as are not unfrequently conferred on executors. The defendant has never resigned the office of executor, nor in any unequivocal manner expressed his intention of resigning his executorial office, and assuming the capacity of a trustee. Besides, the duties of the office of executor under- the will, have not yet been completed. There still remains a part of-the estate to be sold and distributed among the residuary legatees, after the death of the widow, to whom a life estate was given by the'will. The mere fact of settlement in 'the probate court, without more, was not sufficient to terminate the office of executor, and change his character to that of trustee in holding the bonds and collecting and paying out the interest thereon. His acts in this respect were those of an executor, and the plaintiff ivas entitled to the interest on the bonds undiminished by any charges in the way of commissions.

There being no conflict in the evidence, on the law of the case the court properly gave the affirmative charge asked by plaintiff.

The judgment of the circuit court is affirmed.