Fesmire v. Shannon

Citations

• 143 Pa. 201
• 22 A. 898
• 1891 Pa. LEXIS 917

Syllabus

<p>[To be reported.]</p> <p>1. It has always been the law that the act of any one of several co-executors, in disposing of the personal assets of their testator, 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.</p> <p>2. There is a distinction, in this respect, between executors and technical trustees. The latter must execute the duties of their office in their joint capacity; and a payment of a part o f the trust fund to one of them, without the knowledge or consent of the others, will not be a good payment, and a release by one alone will not discharge the debt.</p> <p>(a) Three executors, who were directed by the will of their testator to invest a part of the estate for the benefit of his widow, during her life, settled their account -wherein they set apart a certain sum for investment. A few days afterward, they purchased, with a part of said money, a mortgage previously given by the defendant to a third person.</p> <p>(b) The mortgage was assigned to the three executors as such, without mention of any trust. The original mortgage was left by two of the executors in the custody of the third, in order that the latter might collect and pay over to the widow the interest accruing thereon. After doing so for some years, he collected the principal, satisfied the mortgage of record, and embezzled the money:</p> <p>3. The executors were not technical trustees, under the will; and their right to collect the mortgage, as between them and the mortgagor, was a function of their power as executors. Nor was there anything to put the mortgagor upon notice that they held the mortgage as trustees for the widow. Wherefore, the payment and satisfaction discharged the mortgage.</p> <p>4. There is no distinction, as to the rights and powers of executors, arising out of the fact that property they hold was acquired by them after the testator’s death; n