Imágenes de páginas
PDF
EPUB
[ocr errors]

Commissioners giving 5 per cent. upon the monies retained in
hand. He stated that he never gave more than 4 per cent,
on the simple case of detention, but that he thought that a
case in which five per cent. should be given.

Without detailing the numerous subsequent cases upon this point, I shall only cite a very elaborate one before the vice Chancellor of England, which distinctly shews the whole doc- Tebbs v. trine as it is now settled in that country. In this case as Carpenter, before stated, Executors were called to account, and 1 Mad. Rep. upon the report it appeared, that large annual balances were in their hands; and the Vice Chancellor said there was no evidence to shew any necessity for keeping such balances in their hands.

There was a direction in the will to put out the overplus in the 4 per cents. ; and it seems a naked case of unwarranted retention, with such a direction from the testator. Compound interest was claimed. The Vice Chancellor said, it was a point of great importance that the rule should be clearly ascertained, and proceeds to comment upon the several cases.

290.

As to Raphael & Boehm, he says, Lord Loughborough's de- 11 Vesey, 92, cree was very severe, for he directed the account to be taken from the moment of the testator's death, and interest to be charged upon all the sums received; and rests to be made half yearly upon the balance, including intermediate interest, so that double compound interest was given. Lord Elden did not approve of the decree in that respect, and said, it was expressed in terms that were never inserted, and which he hoped would never again be found in any decree; but he agreed in the propriety of giving compound interest. When the case was before Lord Erskine, he said, 'that it did not depend upon the general rule, as it relates generally to the administration of assets, but upon the special rule prescribed by this particular Will, by which accumulation is pointed out.' That Ra phael v. Boehm was the only case cited in support of the claim of compound interest. No case had been stated previous to that, where compound interest was given. Two subsequent cases had occurred, Dornton v. Dornton and Ashburnham v. 13 Vesey, Thompson. He then states Dornton v. Dornton from the Register's book. The will directed an early disposition of the testator's property, and an investment in the public funds; the interest to be allowed discretionally for maintenance of his Nephew, and the surplus if any to be vested also, when it would purchase £50. The Master of the Rolls there considered the direction to accumulate, as imperative as in Raphael and Boehm.

402. 412.

13 Vesey, 412.

The Vice Chancellor extracts the order from the Register's book, which was in substance, that interest be computed by the Master on the balances from time to time in the defendant's hands at the rate of 5 per cent, to a certain amount, and 4 per cent. for the residue of such balances. He then says, Compound interest it is observable was not directed.

He states also Ashburnham v. Thompson, that the executors had kept the money for 20 years, and employed it for their own advantage. It was pressed that compound interest should be given, but the master of the rolls said, "there was no ground for computing interest upon the balances out of the common way." The Vice Chancellor adds-" In none of the cases previous to Raphael v. Boehm was compound interest given." He then cites, and shortly states the decision, in Perkyns v. Baynton, Newton v. Bennett, Forbes v. Ross, Littlehales v. Gasgoine, Brown v. Southouse, Franklin v. Frith, Seers va 3.430.3. 73. Hind, Piety v. Stace, Pocock v. Redington, and Roche v. Hart, and adds:

1 B. C. C. 275. Ibid. 358.

Ibid. 107.

433.

1 Ves. jr. 294

[merged small][merged small][ocr errors]

66 620.

[ocr errors][ocr errors]

It appears therefore from a view of all the authorities that 794. a distinction has been taken, as in every moral point of view 58. there ought to be, between negligence and corruption in an executor. A special case is necessary to induce the court to charge executors with more than 4 per cent. upon the balances in their hands. If the executor has balances which he ought to have laid out, either in compliance with the express direc

[ Jacob and

tions of the will, or from his general duty, even where the
will is silent, yet if there be nothing more proved in either
case, the omission to lay out money amounts only to a case of
negligence, and not of misfeasance. Is this then a case of
negligence or of misfeasance? Have these executors made any
use of the money to their own profit or advantage?

It appeared that an agent was employed who alone pos-
sessed the balances, which the Vice Chancellor, said, "shew-
ed that the executors did not in fact derive any benefit or
profit to themselves, and he gave but 4 per cent. interest.”

So in the case of Crachelt v. Bethune, the testator directed Walker, 566. his personalty to be invested in the public funds for the benefit of his family-he died in 1799, leaving £2600, 3 per cents. The executor sold out the whole at different times. He had always kept considerable balances in his hands although it did not appear there were any outstanding demands, no debt having been proved under the decree except that of the plaintiff. He refused to pay the plaintiff, alleging he was not satisfied with the justice of the claim. He further insisted in excuse for selling out the stock, that there were de

[merged small][merged small][ocr errors][ocr errors][ocr errors][merged small][merged small]

mands outstanding sufficient to exhaust the whole.

It ap

peared he had in his hands £1130 in 1802, and a larger sum hat all times down to 1811, when he was compelled to pay into court, the sum in hand.

Under these facts it was strongly urged that five per cent. interest should be charged, and annual rests made.

The Master of the Rolls said," That upon the authorities preferred to in Tebbs v. Carpenter, he thought it a case that comes within the rule of charging five per cent. interest, but upon the same authorities, not a case for rests. For that purpose the court has always expected the case to go much further."

There may however be circumstances attending a case of mere detention which will induce the court to charge 5 per 11 v cent. ; and such I consider the case of Mosely v. Ward, in 581. which there was not any profit by employment, but the executor was charged with 5 per cent. upon his annual balances, because he had withdrawn the fund from a situation in which it had yielded that rate of interest.

I shall only advert further to the rule as stated in some of the cited cases, where the party has made a profit by employing the fund to his own use.

Treves v. Townsend was of this description.-£1936 came to the defendant's hands. The Lord Chancellor said, it was established, he had employed it in trade, and allowed 5 per cent. upon it, offering the defendant a reference to shew that the profit was less.

Ante,

113.

Forbes v. In this case the testator had directed his executors and Ross, 2 Cox. Cas. trustees to invest the residue in the purchase of lands, or upon heritable or personal securities at such rate of interest as they should judge reasonable. They loaned large sums to one of themselves, upon a bond at 4 per cent. The testator had loaned him money at the same rate. They admitted that 5 per cent. might have been made by loaning on government securities, or mortgage. The executor had used the borrowed money in his business in common with his own, 5 per cent. interest was claimed.

Lord Chancellor.-The question whether an executor shall be charged with interest on the assets retained in his hands, turns on this, viz. whether the fund has been sò kept for any other purpose than that of discharging the growing claims upon it. It frequently may be necessary for an executor to keep very large sums in his hands; especially in the course of the first year after the decease of the testator. After that, if the court observes that an executor keeps money in his hands

Post.

5 Vesey, 784.

without any apparent reason, but merely for the purpose of using it, then it becomes negligence and a breach of trust; the consequence of which is that the court will charge the executor with interest; and usually at 4 per cent.; but that is only in cases where it does not appear, that the executor has actually made interest of it, or what rate of interest has so been made: but if it can be distinctly made to appear that a greater rate of interest than 4 per cent. has been made, there the Court will not let him make benefit to himself, for he shall account according to the rate of interest made. It has very frequently happened, that from the manner in which the fund has been used, it is totally impossible to tell what interest has been made of it; and it has long been decided that 4 per cent. is the proper rate to be charged under those circumstances. Whether this was a good rule to adopt, I will not discuss at present, though I confess I think it rather doubtful; but it is now the constant course.

He then decided that 5 per cent. should be allowed, on the ground of the trust being executed in favour of one of the Trustees himself, who could receive no benefit from it; and the admission that 5 per cent. could have been made. That where that was admitted it was impossible for a trustee to avail himself of the money in his hands, by paying a smaller rate of interest for it, than he could have got by other means."

I consider this case as correctly exhibiting the rules of the Court except in one position, in which its doctrine has unquestionably been changed, viz. that where interest has been made by employment, but the rate cannot be ascertained, 4 per cent. only is chargeable. If Lord Thurlow means this precisely, (of which there is some room to doubt,) the rule is altered, and 5 per cent. is given. Treves v. Townsend, Pococke v. Reddington, and Piety v. Stace, shew this conclusively.

In Pococke v. Reddington, The executor invested the funds of the estate in stock, which he afterwards sold out, and loaned it to his friends, who failed. Upon exceptions to the report, the Master of the Rolls said that he must answer for it, and for what he might be supposed to have reasonably made, and if he made more, he must answer for that too. That the cestuisque trust had an option either to make him replace the stock (accounting for the dividends) or to affirm his conduct, and take what he had sold it for, and charge him with 5 per cent. interest, or if he had made more, they might charge him with that. This trustee had made nothing, but lost the whole; and they must therefore have either interest at 5 per cent. or the dividends.

So in Piety v. Stace, the Executor had called in part of the 4 Vesey, 620. property which was out on security, and had used it generally in his own trade, and in various transactions in the public funds, paying the dividends only to the person entitled for life. He had made a profit.

The Master of the Rolls said, any gain must be for the cestuique trust. That for every shilling he got by the transactions he should pay interest at the rate of 5 per cent. for every minute it lay in his hands. I suppose he imagined he might make an advantage to himself, if he could do so without disadvantage to the cestuique trust, which is the notion of trustees; but he must pay for that. An account was directed of all the defendant had made with interest at 5 per cent. upon the balances in his hands.

there cited.

Heathcote v. The following case illustrates the rule that the party has Hulme, an election to take profits or interest. The intestate, carried 1 Jac. & Walk. 130, on at his death, a Cotton Manufactory in partnership with and Burden others. He left a widow, and infant children. The widow v. Burden administered, and upon advice, concluded to continue the property of the estate in the trade as it was profitable, and that the children, when of age, might carry it on. It was conducted under the same firm, and with some variation in the terms only.

The partnership was some time after dissolved, but no settlement of accounts took place except so far as the interest of one of the partners was concerned. He was settled with. The profits were diminished after this.

The bill was filed by the children of the intestate, insisting that they were entitled to an account of the profits down to the dissolution, and to interest at 5 per cent. upon their shares since. The Master of the Rolls-The infants have a right in the account of that property of the intestate, that has been embarked in trade, to an option of taking either the interest, or the profits that have arisen from it. The general right of the plaintiff's to call for the account, is not questionable; the only question is what are the limits of that right. Is it variable, and may they take profits for one period, and interest for another, or must they determine once for all, and either take interest for the whole time that the trade has been carried on, or profits for the whole time?"

He determined, that the party had a right to judge which mode of accounting would be most advantageous to him, and to that be must adhere. That the dissolution did not make such a break as to vary the general rule; the capital of the estate continuing to be employed as before in the trade.

« AnteriorContinuar »