Dalton v. Dalton , 51 Me. 170 ( 1863 )

The opinion of the Court was drawn up by

Davis, J.

This case was before the Court in 1860, and was sent back in order to have the question tried by a jury, whether the funds belonged to the principal defendant, in his own right, or to the estate of which he liad the charge as executor. Although we expressed no opinion as to the fact, if the taking a new note was conclusive, it was useless to send the case to a jury trial.

The title to all property is presumed to be in some person, known or unknown. So that, upon the death of any person, the title to his real estate vests immediately in his heirs, and that of his personal estate in his executors or.administrators. But the executor, unlike the heir, has the title in trust, only. He is only responsible as trustee. He may sell it; but it cannot be taken by his creditors. For the trust attaches to it, wherever it may be, until the executor has sold it, or accounted for it to the estate, at the appraised value. E. S., c. 64, § 44.

Nor do the debts due the testator become his. Like the other personal estate, they are und,or his control. He may release or discharge them. And, in case of any malfeasance, he is liable for waste. If he should allow a note due the estate to be renewed, he must take the new note payable to himself. If, in any such case, he would be estopped from denying payment to himself, such a rule would be applied only for the benefit of the estate, against the executor '. No case can be found in which the executor, or any private creditor of his, has had the benefit of any such rule, to divert funds from the estate. That would be permitting the executor to take advantage of his own wrong.

In the case of Coburn v. Ansart & Trustee, 3 Mass., 319, the note collected was payable to Ansart as executor. This was the only fact disclosed; and the attorney was charged as trustee. There was no evidence whatever that the funds belonged to the estate ; there was no claim by the executor, as such; and this must have been the ground of the decision.

In the case at bar, though the executor took a new note payable to himself, which has ■ been collected by a suit at law, the funds have never been mingled with other property, but they are now in the hands of the attorneys, for the benefit of whatever party is entitled to them. " Property covered by a trust,” says Merrick, J., in LeBreton v. Pierce, 2 Allen, 8, "may always be reclaimed, wherever it may be found; and no change of its form, state, or condition, can relieve it from, or divest it of the trust. It is of no consequence into what form, different from the original, the change may have wrought it, — whether it bo that of goods, chattels, notes, stock, or coin; for the product, as a substitute for the original thing, still follows the nature of the thing itself, so long as it can bo ascertained to be such.”

There is an exception to this rule, in favor of bona fide purchasers, for value, without notice of the trust. But the exception does not apply to the case before us. The instructions given to the jury wore in accordance with these principles; and the exceptions must be overruled.

Rice, Cutting, Goodenow and Walton, JJ., concurred.