lous acuteness to have kept separate accounts for each estate. According to the evidence given by Mr. Troop before the Judge of Probate, he pressed upon Mr. Wheelock the desirability of a settlement of R. H. Bath's estate and that a difficulty in the way of doing so was suggested by Mr. Wheelock, arising out of the fact of Clark's estate being still unsettled. Subsequently, however, steps were taken to meet Mr. Troop's desire, and, although it is denied by both him and his coexecutor that any citations were served upon them, it is alleged by Wheelock that his final account was made out and handed to Troop for his approval, and that of the residuary legatees of James Clarke and of Mrs. Bath, in December, 1872. This is denied by Troop, but certain acts of his are strongly confirmatory of the correctness of Mr. Wheelock's statement. I can only imagine some misapprehension to have existed on this point. It is a significant fact that such an account was filed in the Court of Probate, and sworn to, as appears on the account before the Judge, by Mr. Wheelock, on the 18th day of December, 1872. On the back of this account is a memorandum in the handwriting of Mr. Troop, signed by the legatees under Clarke's will, as follows; " We, the undersigned, having examined the within accounts and finding them correct, agree to their final passing in the Probate Court." This bears date November 30th, 1872. Surely, then, there must have been some knowledge on Troop's part of the nature of this account and of the intention of Wheelock to have it passed by the Judge of Probate, some eighteen days before the period when he appeared before the Court, i. e., on the 18th December, 1872, and made a settlement of the account, as contended for by Mr. Wheelock. It is evident that no judicial act was done on that day by the Court, in the form of the ordinary decree on the settlement of estates, although, without doubt, Troop's mind must have been impressed that such was or was about to be made. His subsequent conduct can point to no other conclusion. On the 14th day of April, 1875, the executor of the estate of Robert H. Bath was cited, at the instance of the executors of Eliza A. Bath, to appear in the Court of Probate at Annapolis for the purpose of a final settlement and accounting of the estate of the said Robert H. Bath, deceased. On the 30 th of April, 1875, and on subsequent days, the Court met, and, after hearing proctors for the respective parties and their witnesses, the Judge decreed, "that the several payments made by the said Joseph Wheelock, as the acting executor of Robert H. Bath, as shewn in his several accounts, although contrary to the notices and protests of Mr. Troop, the acting executor of the estate of the said Eliza Ann Bath were, by a memorandum, concurred in by the said Jared C. Troop, as the acting executor of the said Eliza Ann Bath, and that the settlement so had cannot be disturbed." From this decree some of the legatees under the will of Eliza Ann Bath, have appealed, on several grounds, none of which, I think, can avail them, if the settlement contended for on the 18th December, 1872, was made by Mr. Troop and Mr. Wheelock as the acting executors of the respective estates. This appeal was brought to a hearing before this Court, in May, 1877, when it was referred by an order to a Master to hear further evidence of the concurrence of the said Jared C. Troop in, and his approval of, the settlement referred to by the Judge of Probate, and of any payment made, and securities handed over to him in his lifetime by Joseph Wheelock. The Master, Lewis W. Des Barres, before whom witnesses were examined, has reported the evidence, and that the same is conclusive to shew the alleged settlement and the concurrence therein by the said Troop under his own signature. I cannot read the evidence in any light that would enable me to come to a different conclusion. The testimony of Mr. Wheelock and of Mr. W. T. Foster, although contradicted by that of Troop, would, it seems to me, be exceedingly strong in favor of such a settlement. But, how are we to construe the acts of Mr. Troop as consistent with the position taken by him, that he had nothing to do with the account or the proceedings before the Probate Court on the 18th December, 1872, except as Proctor for the Clarks? As such Proctor he must have examined the account before he penned for his clients' signatures an assent to its passing and a certificate of its correctness. He could not but have been aware that it was the final account of the executor of Robert H. Bath, in connection with an estate of which he had pressed for a settlement, and in which the interests of those he represented were so inseparably, as it is said, intermingled. But what does his memorandum of the 3rd of February, 1873, say? It was urged at the argument by Mr. Chesley, with a degree of zeal for his clients far, I may say, in excess of his apparent belief in the intelligence of the Court, that this memorandum was defective, and proved nothing to shew either a settlement or a concurrence therein by Mr. Troop. I think it shews both, and goes largely to confirm the testimony of Foster, who says; "I don't remember that Mr. Troop made any objection to the account, but something did not seem to suit him. It transpired from conversation at the Court, that Mr. Troop claimed a portion of the commissions from Mr. Wheelock. I think Mr. Wheelock said he was willing to do anything that was right. Mr. Troop observed that he and Mr. Wheelock would settle that matter between them afterwards." Settle what matter? Why, the commission to which the executor would in law be entitled in the settlement of Robert H. Bath's estate. Is it not also significant that about this time Wheelock passed over to Troop securities professedly representing the sum of £604 17s. 1d., as shewn by exhibit, and that the balance in Wheelock's hands of $243.35, at the time of the settlement, has been satisfactorily accounted for? With these facts before me, it is impossible to come to any other conclusion than the one arrived at by the Judge of Probate and the Master. I have one other question to consider, and I shall do so briefly. Such a settlement having been made by the executor of the estate of Robert H. Bath, who is also a trustee with Fletcher Bath, under the will, does it conclude the cestui que trust from subsequently resisting a decree based upon such settlement, and opening up an estate thus in good faith settled? The period when the respective and independent duties of executor and trustee attach seemed to be strangely confused at the argument. There can be no question but that one executor can receive payments irrespective of his co-executor and his receipts will be sufficient. Each has an independent right over the personal property of his testator; 2 Atk., 695; 1 Perry on Trusts, sec. 421. At the time of settlement neither the position nor duties of executors had passed from Troop and Bath, and their character and responsibilities as trustees in reference to the assets of the estate had not attached. There had been no severance of any portion of the estate, or any appropriation of it to the particular purposes of the trust indicated by the will. Hill on Trustees, 369. I am of opinion that the appeal must be dismissed with costs. |