Gilman v. Gilman , 54 Me. 453 ( 1867 )

AppletoN, C. J.

It was determined, in Gilman v. Gilman, 52 Maine, 165, that the domicil of Nathaniel Gilman, at the time of his death, was in this State, and that his will should be admitted to probate hei'e.

These complainants were named with others as executors in the will of said Gilman, and have given the bonds required by the statutes of this State, and have taken upon themselves the trust to which they were appointed.

The defendant has pleaded in abatement the non-joinder of certain persons, named in the will as executors, who have never given bonds as required by our statutes, but have qualified as executors according to the laws of New York, and have there entered upon the duties of their trust.

An executor, though qualified as such by the laws of another State, has no authority to act in this. By B. S. 1857, c. 64, § 5, "every executor before entering on the execution of his trust shall give bond, with sufficient sureties resident in this State, in such sums as the Judge of Probate orders, payable to him or his successors,” with certain conditions specified in the same section. By § 7, " when two or more persons are named executors in any will, none shall act as such or intermeddle except those who give bonds as aforesaid.”

As the plea does not allege that the persons named therein as co-executors have given the bonds required by the statute of this State, they could not, according to its express provisions, be parties to the bill. The plea in abatement must be adjudged bad.

The bill alleges that the complainants are executors of the last will and testament of Nathaniel Gilman, late of Waterville, deceased, that they were duly appointed to said trust, gave the bond required by law and entered upon the duties of their trust; that, by said will, the defendant is made a residuary legatee and devisee of said estate ; that, by the 19th section of said will, the testator directs " that Winthrop W. Gilman have no portion of my estate until he has fairly accounted for and settled the amount charged against him in my books, for money advanced by me for him, with interest thereon.”

The bill then sets forth the debits and credits as they appear on the books of the testator. The account is thus headed, — "Winthrop Watson Gilman debtor to Nathaniel Gilman to the following sums, if not settled for and paid before my death, to be taken from his part of my estate,, with interest.”

The items charged then follow.

The credits are preceded by the following clause: —

"Winthrop Watson Gilman is to be credited and allowed of the above demand the following sums.”

After specifying the items of credit, the account has this memorandum: —

" Waterville, Oct. 3, 1844. —These credits, and all others that are clearly just, are to be subtracted from the amount of moneys advanced and debts due me. The balance, if not settled for, to come out or affect his part of my estate, with all the interest.

"Watson has probably paid me about six or seven thousand dollars, and does now owe me, after deducting his payments and casting interest to this date, about ten thousand dollars. Oct. 3, 1844. ' "Nath. Gilman.”

The bill' alleges that the complainants have repeatedly called on the defendant fairly to account for and settle these charges, but that he has neglected and refused so to do; that they cannot administer upon and settle the estate, and make distribution, until the defendant makes his election whether to fairly account for and settle said charges or forfeit his residuary share in the estate.

The prayer of the bill is, that the defendant answer upon oath, and that the Court decree that he shall fairly account for and settle said charges or forfeit his share.

To this bill the defendant demurs, and th e question arises whether, upon the facts set forth in the bill and admitted by the demurrer, the bill can be maintained.

" The definition of what is meant by election under a will may be thus stated, — that every person whom the instrument proposes, in any particular, to benefit, must elect whether he will claim under the will or against its provisions. This implies, of course, that the person thus put to an election, has some rights in regard to the same subject, which he could maintain independent of the will.” 2 Red-field on Wills, 737. "Where the testator assumes to dispose of any estate or interest, which belongs to any devisee or legatee under the will, such devisee or legatee must elect to take under the will or against it.” Ib., 740. Sir William GRANT defiues election thus, — " When one legatee under a will insists upon something by which he would deprive another legatee, under the same will, of the benefit to which he would be entitled, if the first legatee permitted the whole will to operate.” Ib., 741.

"Election * * is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims, in cases where there is clear intention of the person from whom he derives one, that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both, that one should be a substitute for the other. The party who is to take, has a choice; but ho cannot- enjoy the benefits of both.” 2 Story’s Eq., § 1075. "It seems clear, to constitute a case of election, there must be an actual disposition of the property belonging to the person who is to be put to his election.” 2 Redfield on Wills, 744.

The authorities cited by the counsel of the complainant and of the respondent, are alike adverse to the maintenance of this bill. The respondent has no claims against the provisions of the will and no rights independent of the will, so that he should be called upon to determine whether " he will claim under the will or against its provisions.” The testator disposes of no estate belonging to any devisee or legatee under the will. The defendant has no inconsistent or alternative rights or claims between which to choose. There is no disposition of any property of his, to which he must assent before he can be allowed to claim under the will. 2 Spence’s Equitable Jurisdiction, 585.

The will is not before us, but, from its contents as stated in the bill, this would seem to be the common case of a bequest to a son, owing the estate, of his share subject to the deduction of such indebtedness. The books of the testator are referred to in the will, and the amount due, as appears, is to bo deducted from the defendant’s share, — and such further sums as "are clearly just.” "The balance, if not settled for, to come out or affect his part of my estate.” If the defendant neglects to settle, then the defendant would be entitled to his share, after the specified sums are "taken from his part of my (the testator’s) estate.”

It would hardly seem that the testator intended a forfeiture in any event, so far as we can judge from what is set forth in the bill. If, however, on examination of the whole will, the construction should be that the legacy is on condition, it would be for the defendant to see that the condition on his part is performed. In case of non-performance the peril and the risk are his.

The bill really is one of inquiry to ascertain whether a legatee or devisee will or will not accept a legacy or devise; not to compel an election between conflicting and contradictory rights, where the defendant is not entitled to both. If the bill should be maintained, it is not easy to perceive how these complainants could better proceed with the administration of the estate. If the defendant should elect to settle, they would have no greater pdwer to effect a settlement than they now have.. If he should decline any further settlement, the account as stated on the books of the testator must control. It is for the respondent to establish additional credits, if any there be, to which he is justly entitled.

If this bill can be sustained, it is not readily perceived why it cannot be brought in every case against a devisee or legatee, to ascertain whether he will accept his devise or legacy or not, which would be absurd. Either imports a bounty and the acceptance is to be presumed.

Bill dismissed with costs.

Cutting, Walton, Dickerson, Barrows and Tapley,-JJ., concurred.