Clough v. Clough , 71 N.H. 412 ( 1902 )

It has been decided that the devise to the widow of the use and income of all the testator's estate during her life vested in her an absolute life estate in the Green-street house. It follows necessarily that she had the right, not as executrix, but in her private capacity, to dispose of the occupation of the house as she saw fit, as against her co-executor; that is, to rent it to such parties and at such rental as might be agreeable to her, or not to rent it at all. As a devisee, she was not bound to rent it at a reasonable rent. She did not accept the estate upon the condition or covenant that she would obtain a reasonable income from the property for her support, before resorting to the principal for that purpose. Nor did her right to encroach upon the principal of the estate depend upon her using all means to derive a large income from the property in her possession, or upon her exercise of expert business ability in renting the Green-street house.

The entire estate passed to her private possession and control, which she was entitled to exercise during her life. It is certain that her co-executor, Henry, had no right to interfere with her management of the property. As executor, he could not have prevented her from renting the house to A for a nominal rent, or have interfered in any way with the trade between her and A, on the ground that he was entirely irresponsible, or on any other ground. The title to the property came to her from the testator; it did not vest in the executors, and in that capacity they had no control of it. If she had committed waste upon the property, the remainderman, but not her co-executor, would have had ground for complaint.

Having, therefore, the undoubted right to rent the property to A from whom she received no rent, how could Henry as executor be charged with a rental which the court might find to be reasonable? If this means of her support failed, temporarily or permanently, she was entitled to use enough of the principal to relieve her wants. But that would not make her co-executor liable for so much of the principal used by her as would equal a reasonable rental of the Green-street house. If as executor it had been his duty to rent the house, and on account of his breach of trust no rent had been realized, he might be chargeable with the amount of principal used by her on that account. Unless he is guilty of some breach of trust in his capacity as executor, it is not perceived upon what principle he would be bound, in the settlement of his account, to charge himself with any part of the principal which she deemed it necessary to use for her comfort.

Generally, an executor or administrator is authorized to receive the rents and profits of the real estate of the testator or intestate only in case the estate is insolvent. Where a testator provided in his will that after the payment of debts and legacies the residue of his real estate should be sold by his executor and the proceeds thereof be equally divided among his children, and there was sufficient personal property to pay debts, legacies, and expenses of administration, the estate not being administered in the insolvent course and the executor never having sold any portion of the real estate, it was held that the sureties in such executor's bond could not be holden to pay rents and profits of the real estate of the testator. Gregg v. Currier, 36 N.H. 200; Lucy v. Lucy,55 N.H. 9; Lane v. Thompson, 43 N.H. 320; 2 Woern. Admin., s. 513. In Gregg v. Currier, supra, it is said: "Not only was it no part of the duty of the executor, in his official capacity, to receive those rents and profits, but he had no right to intermeddle with them, unless as agent of those heirs. If he collected and appropriated them, without their authority or with it, he was personally, and his individual estate may still be, responsible; but he was not bound to settle for them in his administration account, and therefore the sureties upon his bond are not answerable for them." It follows that if Henry, assuming to act as executor, had collected the rent of the Green-street house, he could not on general principles have been charged with the same on his administration account. He would hold the fund as agent or trustee of his mother, to whom alone he would be accountable. Nor does the fact that he, and not a third party, was the tenant change the principle of his accountability in this proceeding.

But it is said that if Henry had paid a reasonable sum as rent to his mother, there would have been no necessity for her using an equal amount of the principal, and that therefore he must account to his father's estate for that sum, as so much of the principal misappropriated by him as executor. This argument assumes as its basis that he held the entire estate after the payment of debts and expenses of administration as executor, coupled with a trust to so manage, invest, and control the property, as to produce from it a reasonable income for the support of the widow. In other words, it imposes upon him, as executor of his father's estate, duties which he could only perform as a trustee for the legatees under the will. He was made simply a bare executor without power, after the payment of debts, during the life of the widow. The title to the real estate vested upon the decease of the testator in the widow for life, with remainder to the residuary legatees. What "use" she should make of the real estate under the will, what "income" she should derive therefrom, whether reasonable or otherwise, and when such "use and income" should be deemed insufficient for her "comfortable support," were questions not left to the determination of Henry in either his official or private capacity. Whether the residuary legatees might have interfered to prevent her from squandering or misappropriating the principal, or whether they may not now have some remedy upon that ground against her estate (Healey v. Toppan, 45 N.H. 243,262), are questions not material in the present case. As Henry had no legal right to manage the real estate, or to interfere with the life tenant's management of it, or to determine for her whether at any time she was entitled to use a part of the principal for her support, he was guilty of no breach of his duty as executor, if she used more of the principal than she was entitled to. The fact is found that she managed the estate, which is in accordance with the apparent intention of the testator. Langley v. Farmington, 66 N.H. 431. It was not his purpose to make Henry a guardian over her, or to constitute him a trustee of the estate for the benefit of the widow and the residuary legatees. During her life she was to have "the use and income of all my estate, real, personal, and mixed, . . . and to enjoy the same for and during her natural life, . . . and in case the use and income shall not be sufficient for the comfortable support of my said wife, then my will is that she shall use so much of the principal of my estate as she may think sufficient for that purpose." It cannot be inferred from this provision of the will that Henry was to determine when the use and income were insufficient for her comfortable support, and to limit her to so much of the principal as he might think sufficient for her maintenance. But unless he had legal authority of that character which he could exercise and was bound to exercise in the performance of his duties as executor, he cannot be held responsible for her overdraft, if any, upon the principal. Her discretion as life tenant is not the discretion of her co-executor, for which he is liable to account in the probate court. Whether, therefore, she used more of the principal of the real estate than was necessary or reasonable for her support is immaterial in this proceeding.

Henry is entitled to reimbursement for money which he advanced to her for her support from his private funds if the same was reasonably necessary for her support. The burden was upon him to show that fact to entitle him to credit on that account. Furnishing her with money which was not necessary for her support, would not create a valid claim against Charles' estate, though it might constitute a debt against her estate. But it appears from the case that the parties agreed that the expenditures were reasonably made for her support. If this agreement relates to Henry's private claim, and is not modified or cancelled for sufficient cause shown upon a further hearing in the trial court, he will be entitled to credit therefor. If he is owing his mother's estate for the rent of the Green-street house, her estate is entitled to recover it; and if the fact is that she was not warranted in her use and appropriation of the principal, the residuary legatees may obtain relief in an action against her estate.

If Henry had agreed with his mother to pay to his father's estate so much of what might be deemed the reasonable rent of the house occupied by him as would equal the amount of principal used by her, it might be his duty to account for the rent in this proceeding. But there is no evidence in this case showing what the arrangement was between them in regard to the rent; and to charge Henry officially with a reasonable rental not exceeding $1,000 (the amount of the principal used by his mother) would be to judicially make a new contract for the parties, in order to charge Henry with funds or with the real estate belonging to his father's estate, of which he had no control as executor or otherwise, and of which the widow as life tenant had the entire management, accountable only to the residuary legatees. The defendants' contention rests on the false assumption that it was the duty of Henry as executor to manage the property of the estate, the uncontrolled use and income of which, so far as he was concerned, was vested by the testator's will in the widow, and to restrain within reasonable limits her discretion in the use of the principal. The will furnishes no evidence that the testator intended to make such a disposition of his estate.

As, therefore, what Henry advanced for the support of his mother appears to be a proper charge upon the principal, he should be credited with the same; and as he is not accountable as executor for the rent of the Green-street house, the order charging him with a reasonable sum as rent is reversed.

Motion for rehearing denied.

All concurred.