WEEKLY NOTES OF CASES.

VOL. XXIX.] FRIDAY, DEC. 4, 1891. [No. 2.

Supreme Court.

Jan. '91, 97.

whom the executors owed a duty as trustees, although not named as such in the will, the said mortgagor having no actual notice of the trust.

In 1871 D. executed a mortgage to X. In June, 1875, this mortgage was assigned by X.'s administrator to "P., Q., and R., executors of the last will and testament of A., deceased." A. had died in May, 1873, leaving a will, wherein he directed his executors to sell his real estate without liability on the part of the purchasers to see to the application of the proceeds, and then directed the executors to invest the proceeds in good real estate securities, and pay over the interest February 6, 1891. in certain proportions to different parties. The executors were not named as trustees, and the assignment of the mortgage contained no reference to any trust. D. had no actual notice of these trusts. After the as

Fesmire v. Shannon.

Joint executors and joint trustees-Relations of to each other Rights and duties of Power of one executor or trustee to bind his co-executors or co-trustees-Satisfaction of mortgage by one executor-Notice.

Co-executors, however numerous, are regarded in law as an individual person; each executor has a joint and entire authority over the whole of the testator's property, and the acts of any one of them, in respect of the administration of the effects, are deemed to be the acts of all.

Co-trustees are regarded in law as but one collective trustee, and they are required to execute the duties of their office in their joint capacity, and the acts of any one of them, in respect of the administration of their trust, are not binding upon the co-trustees who have not joined therein.

When a mortgage executed to an individual is assigned to several persons, "executors of the last will and testament of a deceased," and the assignment contains no reference to a trust in said executors, it is notice to the mortgagor that the assignees were executors, but it is notice of nothing more, and does not subject him to any duty of further inquiry in order to discover whether the executors were trustees as be

tween themselves and some third person.

A will which directs the executors thereof to sell the testator's real estate without liability on the part of the purchasers to see to the application of the purchase-money, and then directs the executors as such to invest the decedent's personal and real estate in good real estate securities, and pay over the interest in certain proportions to different legatees, is not in itself notice that a mortgage purchased by the executors, and assigned to them as such without reference to any trust, is in fact an investment made by them in accordance with the testator's directions, and held by

them as trustees for the legatees.

signment, R. was intrusted with the mortgage papers,
and alone collected the interest until April 1, 1882,
when D. paid R. the principal of the mortgage, and
R., as acting executor, entered satisfaction of the
mortgage on record, and delivered up the mortgage
papers to D.
In 1886, A.'s executors issued a scire
facias on the mortgage:

Held, 1. That the assignment of the mortgage was notice to D. that the assignees were executors of A., but of nothing more, and did not subject him to any duty of further inquiry whether the executors were not trustees as between themselves and third persons.

2. That had D. been acquainted with the provisions of A.'s will, the payment and satisfaction of the mortgage would still have been binding, there being no technical trust expressed in the will, and all duties thereunder being expressly required to be performed by the executors as such.

Appeal of James Shannon, defendant, from the judgment of the Common Pleas of Montgomery County in an action of scire facias sur mortgage, wherein Peter Fesmire and Ephraim Magargal (who brought suit with one Josiah Kerper, who has since been discharged as executor of the last will and testament of Peter Fesmire, deceased), executors of the last will and testament of Peter Fesmire, deceased, assignees of Benjamin Brown, administrator of Samuel Brown, deceased, were plaintiffs, and the appellant was made defendant, with notice to William Hazel Wilson, terre

tenant.

On the trial, before SWARTZ, P. J., the following facts appeared: The mortgage in suit was executed and delivered April 1, 1871, by James Shannon to Samuel Brown, to secure the payment of $2500 with interest. The mortgagee having died on June 19, 1875, the mortgage was assigned as follows:

I, Benjamin Brown, administrator of Samuel Brown, the mortgagee within named, do hereby assign, transfer, and set over the within mortgage, and all moneys due and to become due thereon, unto Josiah Kerper, Peter Fesmire, and Ephraim Magargal, executors of the last will and testament of Peter Fesmire, deceased, to hold the same to them, together with the mortgaged premises within described, their heirs, executors, administrators, and assigns.

When a mortgage executed to an individual is assigned to several persons, "executors of the last will and testament of A., deceased," and the assignment contains no reference to a trust in said executors, one of the executors, who has for years alone received the interest and been in possession of the mortgage papers, with the consent of his co-executors, may receive payment of the principal, and enter a satisfaction on the record of the mortgage, which will be binding upon his co-executors, and the mortgagor is not bound to see to the application of the money paid by him, although the mortgage was in fact an investment made by the executors under directions contained in testaPeter Fesmire, Sr., had died in May, 1873, tor's will, and for the benefit of certain legatees, to leaving a will wherein having directed payment

of his debts, and given his executors full power to sell his real estate without liability on the part of the purchasers to see to the application of the proceeds, he further directed :

Item. I order and direct that the one-third part of the proceeds of my said Real Estate together with the onethird part of my personal Estate shall be invested by my hereinafter named Executors or the survivors or survivor of them in good real Estate securities and the interest or income thereof shall be paid by my said Executors, half yearly, unto my wife Jane Fesmire, during all the term of her natural life and after her decease the said one-third part of the proceeds of my said estate Real and personal as aforesaid shall be equally divided among my following named children, viz: Mary Thatcher wife of Edward Thatcher of the State of Delaware Catharine Magargal wife of Eph. raim Magargal of the State of Delaware, aforesaid, Henry C. Festire of the City of Philadelphia and State of Pennsylvania, Peter Fesmire of the County of Montgomery aforesaid and Ellen Fesmire of the said County of Montgomery their heirs and assigns forever share and share alike.

and delivered the mortgage to Shannon, with the recorder's indorsement "satisfied." Josiah Kerper had possession of the papers from the time of the assignment until the mortgage debt was paid, with the consent and by the direction of his coexecutors, and had always received the. interest from the counsel. Subsequently to the payment of the mortgage, Shannon for a full consideration granted the premises to the present terre-tenant. Shannon never had notice of the purpose for which the mortgage was held.

The present scire facias was issued in 1886. At the trial the plaintiffs offered in evidence the record of the assignment of the mortgage, and the will of Peter Fesmire, deceased. Both offers were objected to, the objections overruled, and the evidence admitted. Exception.

is a suit upon a mortgage, and as the Court views The Court charged the jury as follows: "This this case there is no question of fact that requires Item. I give devise and bequeath unto my Grand- your consideration. [The only question raised daughter Ellen Magargal daughter of my deceased by this issue is one of law, and, therefore, it seems daughter Ann Clark the sum of five hundred dollars, plain to the Court that the duty of the Court is to be paid to her when she shall arrive at the age of Twenty-one years. And I do also give devise and be- to direct you to render a verdict in favor of the queath unto each of my Grandchildren who are the plaintiffs and against the defendants.] It is perissue and children of my deceased son Josiah K. Fesmire haps unnecessary to give my reasons to you for the sum of Five hundred dollars to be paid to them when this conviction. It appears in the evidence of they shall respectively arrive at the age of Twenty- this case that Josiah Kerper, Peter Fesmire, and one years. And in case I should die in the minority of all or either of my said mentioned grandchildren, I order and direct that the said sums of Five hundred dollars bequeathed to such of them as shall be in their minority as aforesaid shall be invested by my said Executors or the survivors or survivor of them until they respectively arrive at the age of Twenty-one years when the same shall be paid to them with the accrued interest thereon and in case either of my said above mentioned grandchildren shall die before arriving at the age of twenty-one years, then I order and direct that the said sum of Five hundred dollars bequeathed to such of them so dying as aforesaid together with the accrued interest thereon (if any) shall revert and pass into the residue of my Estate hereinafter mentioned and be disposed of under the residuary clause contained in this my last Will and Testament.

I

Item. All the rest residue and remainder of the proceeds of my Estate real or personal as aforesaid give devise and bequeath unto my above named five children viz: Mary Thatcher, Catharine Magargal, Henry C. Fesmire, Peter Fesmire and Ellen Fesmire their heirs, Executors, Administrators and Assigns forever to be equally divided between them share and

share alike.

And Lastly I nominate and appoint my friend Josiah Kerper my son Peter Fesmire and ny son-in-law Ephraim Magargal the Executors of this my last Will

and Testament.

The defendant, Shannon, paid the interest on the mortgage to the counsel of Brown's administrator and Fesmire's executors, until April 1, 1882, when he paid the principal to Josiah Kerper, who received the money and entered satisfaction on the margin of the record of the mortgage in the recorder's office, signing himself as "acting executor of Peter Fesmire, deceased,"

Ephraim Magargal, as executors of Peter Fesmire, deceased, purchased a certain mortgage given by James Shannon to Samuel Brown; that they made this purchase with the funds of the Fesmire estate, and the assignment of the mortgage was made by Mr. Brown to Josiah Kerper, Peter Fesmire, and Ephraim Magargal, executors of Peter Fesmire, deceased. There is no evidence here that Mr. Shannon had any knowledge of any trust devolving upon these executors other than that which devolved upon them as executors. Nor is there any proof here that Mr. Shannon had notice that this money was invested by the executors, the interest whereof was to be paid to the widow of Peter Fesmire. [The facts as disclosed in this case show simply the invesment by three executors of the funds of the estate and the payment by the owner of the property, the mortgagor, to one of the executors, who failed to account to the estate, or to his co-executors for the money so received, and in the view the Court takes of this case that is not a good payment of the mortgage,] and the satisfaction entered by one of the executors under such circumstances is not a good satisfaction. The executors are appointed to act together. The purpose of the appointment of three executors, no doubt, is for the better protection of the estate, and when this obligation was taken in the name of the three executors, it was right and proper that each one should be consulted, or at least assent to the payment of this money to any particular one of the

It has always been the law, and is not at all
disputed, that co-executors are regarded as an
individual
that they possess full power
and control over the personal assets of their tes-"
tator; that the act of any one of them in dispos-
ing of the assets is the act of all and binds all,
and that one of them may release a debt which
has been paid to him in good faith by a debtor
of the testator, with binding efficacy as to the
whole. In Williams on Executors, Part III.,
ch. 2, it is said: "Co-executors, however nu-
merous, are regarded in law as an individual
person; and, by consequence, the acts of
any one
of them, in respect of the administration of the
effects, are deemed to be the acts of all, for they
all have a joint and entire authority over the
whole property. Hence the release of a debt by
one of several executors is valid and shall bind
the rest." This Court has fully recognized this

The assignment of the mortgage gave record doctrine in many instances, and in the case of

Wood's Appeal, 92 Pa. 379, it was correctly | adopted by this Court, said: "It may therefore expressed by our late brother TRUNKEY thus "An executor holds under a trust; he is the minister or dispenser of the goods of the dead. He has the same property in the personal effects as the deceased had when living. It is a general rule of law and equity, that an executor has an absolute power of disposal over the personal effects of his testator, and that they cannot be followed by creditors nor legatees into the hands of the alienee. This results from the fact that in many instances the executor must sell in order to perform his duty in paying debts, etc., and no one would deal with him if liable afterwards to be called to an account. Co-executors are regarded as an individual person; and the acts of any of them, in respect to the administration of the effects, are deemed to be the acts of all; as where one releases a debt or settles an account of a person with the deceased, or surrenders a term, or sells the goods and chattels of the estate, his act binds the others."

As the mortgage debt in this case was paid to one of the executors of Peter Fesmire, who thereupon, in his capacity of acting executor, released the debt and satisfied the record, the payment was prima facie a good payment and discharged the debt. But the appellees rely upon another principle, under which they contend that the debt was not discharged, and that is, that as to this particular debt the executors were trustees and not merely executors, and therefore a payment to one of them was not binding upon all, but must be made to all, and the release must be executed by all. The doctrine as to trustees, and the distinction between their acts and those of executors is well expressed by HARE, P. J., in an opinion adopted by this Court, in the case of De Haven v. Williams, 80 Pa. 480, thus: "It is well settled in general that the acts of one coexecutor bind the others by reason of the confidence reposed in them individually, in consequence of which each has full power over the assets: Beltzhoover v. Darragh, 16 S. & R. 329. This is an exception to the rule that when a trust or authority is delegated for mere private purposes the concurrence of all who are intrusted with the power is requisite to its due execution: Sinclair v. Jackson, 8 Cowen, 533, 583; and distinguishes executors from trustees, who are regarded by equity as forming one collective trustee, and must execute the duties of the office in their joint capacity: Vandever's Appeal, 8 W. & S. 405, 409. Hence a payment to one executor, or a release from him, extinguishes the debt, although he misapplies the money, and no part of it comes to the use of the estate."

In Bohlen's Estate, 75 Pa. 304, the present Chief Justice, in an opinion while on the Common Pleas Bench, which as to this subject was

safely be assumed that where stock stands upon the books of a corporation in the name of a trustee, the said corporation is bound to inquire as to the authority of the trustee to transfer said stock before they permit such transfer to be made. This rule does not apply, however, to the case of executors and administrators transferring stock standing in the name of a decedent, for the reason that the law casts upon them the legal ownership of the personal property of such decedent. It is their duty to pay debts and make distribution amongst heirs and legatees. To do so they must convert the personalty into cash, and a transfer of stock, therefore, would be in due course of administration. It would be unreasonable to hold that a corporation in such case should be held to inquire whether in point of fact the particular stock was needed for the payment of debts or legacies. . . . . A trustee stands upon a different footing from an executor or administrator in regard to the transfer of stock. Administration is no part of his duties. His office is to hold and safely keep the trust funds in accordance with the terms of the will or other instrument creating the trust. Sometimes it is to pay income to the parties entitled thereto, or to accumulate the same during a stated period. If he transfers securities it must be in pursuance of an express authority contained in the trust itself, or by virtue of an authority implied from the nature of said trust, or the character of the securities in his hands.”

In Wood's Appeal, supra, we further said: "An executor's duty is not like that of a trustee, in whom property is vested, not for administration or sale, but custody and management for his cestuis que trust. The party taking stock on pledge from such trustee deals with it at his peril, for there is no presumption of a right to sell it, as there is in the case of an executor: Duncan v. Joudon, 15 Wall. 165; Shaw v. Spencer, 100 Mass. 382. The executor has the right to sell and transfer, and one who buys of him in good faith and pays in money the price agreed upon, is not responsible for the application of the purchase-money:' Per HUNT, J., Leitch et al. v. Wells et al., 48 N Y. 585. Letters of administration are always sufficient evidence of authority to transfer, because a sale and transfer of stock is in the line of the duty of an administrator. The powers of an executor or administrator differ from those of an ordinary trustee; the duty of the latter being custody and management; of the former, to dispose of the personal property, to pay debts, etc."

Many other authorities are to the same effect as the foregoing, and further citation of them is quite unnecessary. Had the defendant given a mortgage to trustees for a part of the trust fund

a payment to one of them without the knowledge | and was not, by consequence of any attitude of or consent of the others would not have been a his, subject to a duty of inquiry. The assigngood payment, and a release by one of them would ment was made directly by the administrator of not have discharged the debt. But such was the mortgagee Brown to the executors of Fesnot this case. The mortgage in suit was the private mire. It was nothing but an ordinary assignindividual obligation of the defendant Shannon to ment which passed the title of the assignor to the the mortgagee Brown, who also was a mere pri- assignees, and the assignees were described simvate person, and it was given for the sole purpose ply as "executors of the last will and testament of securing Shannon's debt to Brown. The one of Peter Fesmire, deceased." This was notice sole duty of Shannon was to pay the debt to to Shannon that the assignees were executors of Brown, or to the legal owner of the mortgage at Fesmire, but it was notice of nothing more. If or after the time of its maturity. Brown having he looked, therefore, to the assignment, he found died, his administrators assigned the mortgage to only an assignment to persons who were executhe executors of Peter Fesmire, and they were tors, and that was enough, because executors are then the legal owners of the mortgage, and be- the legal representatives of their testator, with yond all question were entitled in their capacity full and absolute power to collect his debts, and as executors to collect the money from Shannon. that power was the only one with which Shannon It is argued for the appellees that under the will had any concern. There was not the slightest of Peter Fesmire his executors were directed to reference to any trust of any kind in the assigninvest one-third part of his estate for the use of ment, and as the executors possessed the whole his widow during her life, and that as to her they power of collection, the defendant was subject to were trustees, and that Shannon was bound to no duty of further inquiry in order to discover take notice of this trust, and could not lawfully whether, as between the executors and some pay to one of them. To this argument there are, third person, they were subject to a duty of trust. as it seems to us, several replies. In the first place, granting that the executors were also trustees as to the widow, they were not technical trustees under the provisions of the will. No trustees were named in the will. The executors as such were required to invest the money for the use of the widow, and pay her the interest. Nevertheless, they were executors, and as such were clothed with the whole legal ownership of the mortgage. In that capacity, as between them and the defendant Shannon, they had the right to exercise the whole power of collection, which, of course, includes the power and lawful right to receive the money, as well without suit as with it. Shannon's duty was to pay the debt to the executors. He owed no duty of protection to the widow or to any one else. The right to receive the money was solely vested in the executors in any event. No other persons than they had any right to receive it; they possessed all the power, and held all the legal right to collect it which could possibly exist, and their right of collection was a function of their power as executors and not as trustees. True, they owed a duty as trustees to the widow, but with that duty the defendant had nothing to do, and was in no wise responsible for it. When he paid the debt to the persons legally entitled to receive it his whole duty was discharged. Therefore, it is a non sequitur that he was responsible for the application of the money after he had paid it to the persons who alone had the right to receive it, in the special capacity in which they did receive it. It may be granted that they held it as trustees, but they most certainly received it as executors. Again, the defendant had no notice of the trust,

But again, if he had searched for, and found, the will of Peter Fesmire, he would have found no other persons but the executors to whom he could lawfully have paid the money. There was no technical trust expressed in the will. The duties that were to be performed in the way of investment were duties which the executors alone, and by express mention, were to perform, and they were such duties as executors may properly be required to perform. They were to sell the real estate, and make deeds to the purchasers without liability on the part of the purchasers to see to the application of the proceeds. They were not to pay over to themselves, as trustees, the money to be invested, but were to invest it themselves in their capacity as executors, and pay over the interest to the widow and the other persons entitled thereto. Nor would the will have informed the defendant that the particular money represented by his mortgage was devoted to the use of the widow. For there was another investment directed to be made, also by the execu tors, in favor of certain grandchildren.

We have not been referred to any authority by the learned counsel for the appellees to support their contention, that a trust arose of which the defendant was bound to take notice, either generally or because the mortgage in question was taken by Fesmire's executors in their own right; but on behalf of the appellants, we have been referred to several cases in which their contention appears to be sustained. Thus in the case of Wood's Appeal, 92 Pa. 379, one of four executors placed in the hands of his broker certain certificates of stock belonging to the estate of his testator. These certificates were pledged as col