Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1883-03-17


sci would have done so. In IN case the proof
SHOWS that the executor fe'rsd and had cause to
Of sarah W. Bolton y The proof tkows that the
testator felt the same fear. The viii is proof
conclusive on this pint. Almost every clause
in it bristles with evidence cf alarm;
and il was made the duty of the *
ecutor TO make no compromises in this suit but
10 fight il to the bitter end. This object was up
pernost in the mind and wish OF the testztor, and
all other matters were made subservient 10 this.
The result reached on this branch OF the case is
that the executor will not charged with interest
on the ground that he failed TO loan or invest the
money, Tor the reason that there was no time that
risk; snd l am not prepared to say,
from the proofs and facts OF this case,
that lis eIigencies we're not such that
meu OF ordinary care might not honestly conclude
that thew required MIN 10 hold the money 10 meet
them, or that mis- doing. would be such gross
negligence as TO constitute breach Of trust;
While this is 50, 1 think he should have invested
the funds, especially after the gigantic suit was
appealed, or have applied to the court for in
structions. And the fact that his commercial
hrm had the use OF the money, is an additional
reason why he should have made application And
gest this course, and thereby relieve himsen
OF this questionable POSITION. This is
suspicious TACT in the case, but not enough in con
nection with the other facts TO establish fraudu-
lent intent 1t requires c0gent proof 10 do this
In defense of the executor it is forcibly said that
most OF the complainanl1 are sui juTls. That they
wee equally interested with the executor in
making the fund productive That they might
have applied TO the courts any time TO have the
money invested, but that each and all of them
failed to do so. That If 1t was such plain case
for investment, II is singular that all Of them
remained silent on the subject and did not
so much suggest t. him the propriety or
necessity of investing the fund. Their neglect
would not excuse the executor but 1t is a fact in
the ca showing that al OF the couplainants Who
were deeSy interested in he fund, with knowl-
edge of the fact that Apperson was an executor
without bond, did not deem IL expedient or nee s.
sary to make the suggestion, Tne fact seems TO be
that all parties interested were 50 enlisted and
stirred up in the magnitude of the gigantic suit
that all other matters to ZONE extent lost
sight of.
assets OF this estate were invested in United
States $50 8 per cent. bonds, and Sl4 900
in per cent. 1910 bonds, agsresating ST.
Co., and that he converted these into money before
1t was necessary for him to do so. The former on
or before the Sd day Of September, 1879 and the
to- The exigencies OF the estate did not require
this to be done. Then there was 10 necessity for
the conversion of this large amount of interest
bearing, non-taxable securities into noninterest-
bearing, taxable funds. Such securities could, on
short notice, have been converted into money to
To do this under the facts of this case was q
breach of trust and violation of plain duty,
and he will De charged interest on the proceeds of
each bond SO converted from the date of the sale
OF each TO The taking OF the accounts. Il5 Brown,
AGO. Perry 90 Trust. Sec. 46s, Williams, on Ex-
But learned counsel offer ss IN excuse that
these bonds, when sold, hid been or were about
to be called Ia BY the government: II SO, how dld
alone is sufficient to break down this argument.
But; If 1t were otherwise, The government would
glsdly have given 414 bonds Tor the per cent.
bonds, which are now at a greater premium than
he got for the bonds he sold. While the other
bonds need not have been sold at any time as the
government made arrangements WITH all who
wished to pay per cent on such bonds.
1t also appears from the inventory of the execu-
tor, flied November l, 1869, that L. NJ. Apperson
Co. were due the estate the gum oil Sl2,;;
$50 81. This large sum is not reported
and Il thess setiements maGe g1eer
oath, are correct, 1t was not collected and have
no reason 10 suppose that they are not 1t was his
duty to collect all solvent claims it'll interest,
and 1t will scarcely be asserted that It does not be-
long TO the solvent class; aud when paid the law
presumes that he has done so. Is Jones Eq., 2s2
Then If be has failed to collect he is csargeable
with interest, and II he did CO let and failed from
time to time 10 report this fact he is liable for in
terest For such omission would be q willful VIC
lation OF plain duty and breach of trust and
the, reason assigned only makes stranger case
against HIM.
1t remains to be considered whether or not
f. III. Appers0n is liable for interest either COM
deposited or placed with the firm of Z. NJ AppeT-
son Co. by him in his name as executor.
This is perplexins question, rendered so by the
peculiar facts Of the case 1t is rule of law that
II executor the trust fluid for himself or in
his business he will be chargeable with interest or
phon's 10, l42; Rookie Is Hart, 5 Fes'. SO; Bar
ney rs. Sanders, l6 Howard; Tuney Us. Williams,
Yerg;, 2l4; l Perry, 46s; JONES. ely. R., sos;
Iule is that the mixing of the funds with his own
will work the same results. Iyie rs. Coleman. AZ
Paige, So Perry. Gos So When he deposits ts the
fund In his own name or the name of his firm.
Eq sec ia; Mason vs.. Whitihorne, Csid'. so;
II Hess. 4Se. Or where he deposits in his name
with commercial firm of which he is o member.
The learned counsel for the executor aver that
bis act touching these moneys does not come with
in either of these clauses. They state that de-
posts in his representative capao ty gives an ear
marx TO the fund and protects him from liza biitY
for loss OF the fund or interest and such is the
In, TAM Nall W.Hz TI-s,
$50: see also Perry, ST.; Csld., 245; 9 Hum,
GA and that such a deposit with the commercial
firm was equivalent to aking ike deposit in
bank, and was equally protective 10 him. It is
held that such deposit with q banking firm OF
which he is a member will protect him. Il Perry,
57l; Hess estate 6S. Pa st., Asa. 1t will be seen
that these authorities decide three questions:
l. That an executor may safely deposit in a
bank OF good good standing in his name as execu-
tor. u Heis., $50; 8 Hum, GAL
2. That 1t need not be corporate bank, but only
firm of tankers who Use the deposits in their
business. les Pa. St., 45i; Perry, see. ST.
8. hat the fact that he viii share in its profits
docs not alter the custom. 70 GS Pa. ST., 454
ness thst the depository selected is engaged in II
is a commercial and not clearinghouse, although
receive deposits and use the same in business. Or
dinarily oould find little difficulty in deciding
this question where the executor indirectly had
the use OF the money Tor so long time In this
case, however, 1t appears from the proof that
the making of said firm his depository
Of the testatOr The proof shows that the testator
had great oistrust to banks, and seldom used
them except as agents Of collection; that he had
cause to fear them, about half the banks doing
business here since the war have failed; thai the
bank in which part Of the money OF the testator
Mr.. Quigley further testified that the teststor had
great confidence in the sOlyency oil the firm of Z.
II Apperson d Co., and considered it safer than
any bank, and for that resson selected It as his
place Of depoit; and 1t is csimed for the executor
that it was entirely proper for him 10 contisue the
depository selected by the teststor that his strong
& gtftTac ~
are an implied direction o the executor where he
il satisfied that the depository Is scls.
10 the case OF Houbest's appeal 1872 Pa. st. 4SSl
the Court said "rhe deposit or investment by
"the executor in the bank of Jay Cooke d Co. was
nothing but continuation OF the deposit made
by the testator Had this been an original deposit
by the executor II wOuld have presented quite
different question" [see Perry. 402 3. and 81
This case indicates that the fact that the tesla.
tor had selected depository on the expressed
ground OF Its superi + safety an executor who
the same depository IN preference to that of a
bank, would stand on much higher grounds Tor
the approval of his act thsn anyone who selected
like depository which was not engaged in the
business OF banking, and particularly would this
be 50 where the executor was a member of the
firm; because Of the suspicion that arises in such
case of desire to thus secure personal gain by
so doing. The object in all such cases is TO Sc
cure safe deposit OF the money where it msy be
checked out whenever the emergency for 10 doing
aries. Banks are almost universally selected, be-
cause they engage in that Kind OF business spe
business Butif this object be as well attained
and at the same time carry out the wish AID
deposit with commercial firm, why may it be
done? According to the Houbests case, cited
above be could have left the deposit in the Bank
of Memphis, where he found it. and thereby losI
it, without risk. Then why is he not protected
where he pursued the same policy as TO the other
depository, and thus preserved the fund that
would Otherwise have been lost in the Bank of
Memphis? Does not this fact tend 10 approve the
wisdom of the discretion exercised in following
"A ali frF1er ,fnff
question that must be decided upon the reason
and analogies OF the law on the subject of depos-
its. There is no adjudicsted case on the direct
question at is ue case in 20 La. Arm, . Jas, is
cited by the collectors Of the executor; but it does
not involve the question. The Court there held
that the executor was held liable because he made
the deposit in his own name; and it may be in
ferred, from the Language used, that tue Court
considered that quite different case would arise
where the deposit is in his representative capacity
Reasoning from principle and the object of the
law, have reached the conclusion:
L That a commercial firm Of high standing for
credit, solvency aud prompt payments may be
selected by executors and other trustees for de-
postories.
trustee 10 select commercial firm in which he is
q member, as it offers too great temptation for
party thus interested to select such firm although
it may not be the safest depository and also to
delay the payments to the legstees-
8. That where the te.tator himself selected the
and the executor adopted it, he would
be protected in so doing from liability, provided
the fund was safe and tie firm able and ready to
meet Tue SGistuClco VI cslHtc anu pay sutH
checks or order of the court ss may from time to
time ue drawn or made upon it.
At present 1t appears that the firm of E. N. APP
person & Co. is safe depository; that it was the
one above all Others preferred and selected by the
teststor; that heretofore ali checks drawn on it
TO meet the r-geneies of the estate were promptly
paid, and II may be inferred from the evidence in
tie case that it will continue to do SO. Under
state OF the case the executor is not charge able
with interest.
But if it should turn out hereafter that said
firm, OF which the executor is the managing
partner, should fail or refuse to omptly pay the
checks of the executor to meet the demands OF the
estate upon him, or iail 10 promptly pay into
said estate so deposited, then I would charge
the executor interest on said sum of money
remaining in lis hnncs fIom the time IL RECEIVED