Rayner v. Pearsall , 3 Johns. Ch. 578 ( 1818 )

The Chancellor.

There does not appear .to exist even the shadow of a right of action against the defendant Rapelyea, He married, in 1814, a daughter of Pear-' sail, the executor, who had been dead ten years, and he received from his mother-in-law a few dollars in money, and some trifling furniture belonging to the estate of Pear-sail, and of which estate she was only an administratrix of assets unadministered by the former administrator. There is no real pretension of any collusion between him and any person representing the estate or assets of Searing. The complainant Eayner was the personal representative of Searing, when the defendant R. married into the family of Pearsall. The defendant R. did not receive the furniture and cash of Lavinia Pearsall as being part of the estate of Searing. There is no proof of such an allegation, or that he had any reason to suspect any connexion between what he received, and the assets of the estate of Searing. There is no such identity traced, or pretended, in the property he received. The defendant R. was, therefore, brought into court without any reasonable cause. It would be most inconvenient, if not unjust, to pursue assets in this way, through successive hands, or a sequel of transfers, when no fraud or collusion exists, even if the assets could be traced and identified. There must be collusion to make the assignee of an executor, and, more especially, the assignee of an administrator of the executor, liable to the legatees of the testator. This is the principle to be found in the books. (Newland v. Champion, 1 Vesey, 106. Lord Hardwicke, in Simpson v. Vaughan, 2 Atk. 33., and 2 Vesey. 469.

The bill as to the defendant Rapelyea must, therefore, be dismissed, with costs.

We come next to consider the case of Lavinia Pearsall, the administrator de bonis non of Pearsall, the executor of Searing, and the principal question in the case is, how far Pearsall was personally responsible at his death.

Wm. Pearsall had been the acting executor of Searing, from October, 1797, to May, 1804, when he died, and it ig not until May, 1816, or 12 years after his death, that this suit is brought against his personal representative, and who may be considered as a representative in the second degree. Every intendment ought to be made in favour of the executor who has been so long dead, and when his immediate administrator has been dead lor upwards of ten years before the filing of the bill.

A principal mattpr in contest, is respecting certain bonds and notes which Pearsall, the executor, in 1799, put into the hands of Skinner, an attorney, for collection. The attorney says, that suits were brought upon these bonds and notes and he can give no further account of them, except that some time after the death of Pearsall, he delivered most of them over to Winter, another attorney. They were collected, or-the money received by Winter, to the amount of 1,700 dollars, who appropriated it to his own use, and became insolvent. The present plaintiff, Jiayner, has sued Winter for the moneys so collected, and obtained a verdict against him; and he now seeks to charge the estate of Pearsall with that loss, on the ground of negligenbe in Pearsall. But the facts and circumstances of the case do not appear to afford any sufficient reason for charging the estate of Pearsall with the loss of the money 20 recovered and appropriated by the attorney. There was no insolvency of the original debtors. The debts were secure at the death of Pearsall. The debtors were then competent to pay, and they.did, afterwards, pay to the attorney. The loss arises from the. act of the attorney, long after the death of the executor, and the estate of the executor ought not, surely, to be charged for such subsequent defalcations. It is only responsible for plain and strong acts of negligence or misconduct imputable to the executor himself. There does not appear to have been any pressing necessity for the immediate collection of the debts. The executor acted with reasonable and ordinary discretion and care. He left the debts secure, and it was not until six years after his death, that the moneys were received by an attorney, who abused his trust. The plaintiff, Rayner, may clrtrgethe loss more properly to his own negligence, in not faking- out letters of administration upon the estate of Sein ing, until seven years after tire death of Pearsall. He might at any time have compelled the surviving executors of Searing to act, or to renounce.

If the debts collected and wasted by Winter, be put out of the car.e, it is very evident, that Pearsall’s estate has nothing for which it ought justly to be accountable to the plaintiffs, provided the list of payments annexed to the answer of Lavinia Pearsall be correct. She avers, in her answer, that they are all supported by “receipts taken in a book, and on small detached pieces of paper, now remaining in her possession.” This being matter set up in defence,- or by way of avoidance, must be proved; yet, I observe, that in the statement by the plaintiff’s counsel of the balance he claims, this schedule of payments by Pearsall, the executor, is assumed to be correct. If it be so, there is an end to the claim, supposing Pearsall’s estate not to be chargeable with the moneys collected and misapplied by Winter.

The case, at last, resolves itself into this point, whether it be necessary or discreet to subject the defendant Lavinia P. to the trouble and expense of accounting, by proving all those receipts taken by the executor, considering the obscurity and difficulty whicli the lapse of time must have thrown over the transactions. The perplexity and hardship of accounting is greatly increased in the case of an administrator de bonis non of an executor of the assets sought to be recovered. There is very good reason to believe, from an attentive examination of the pleadings and proofs, that no balance could be found due from the estate of Pearsall, even if an account was to be decreed.— And if that should happen to be the case, there is another serious difficulty in the way, Lavinia Pearsall avers, that - she has duly administered the estate of Pearsall, left un». administered by the prior administrator, and that she had distributed the small surplus of assets, after payment of the debts, which surplus would hardly pay the expense of the reference. It was only 81 dollars, exclusive of some furniture distributed among the representatives of Pearsall.

The plaintiff Rayner, who administered upon the estate of Searing in 1811, waited five years, and suffered this distribution of the estate of Pearsall to be made, before he filed his bill, and he now calls upon Lavinia P. to account for the administration of Pearsall, as well as of her own, twelve years after his death.

In Ray v. Bogart, (2 Johns. Cas. 432.) the Court of Errors confirmed a decree of this court, dismissing a bill for an account, by reason of delay and lapse of time, and the death of parties, and the probable loss of papers, though thé real laches in that case was only for eleven years. The case of Sturt v. Mellish, (2 Atk. 610.) is a strong one to show the unwillingness of the court to decree an account, when the transactions have become obscure and entangled by delay and time. There is no certain and definite rule on the subject. Each case must depend upon the exercise of a sound discretion arising out of the circumstances.—■ My conclusion is, that in this case it would be oppressive, and without any beneficial result to either party, to order an account to be taken; I shall, accordingly, dismiss the bill as to the defendant Lavinia P., without costs.

Decree accordingly.