Benjamin N. Cardozo

“ The diversity of doctrine is surprising, and so often is its obscurity. The commentators tell us, however, and, as the cases show, correctly, that the growing tendency in this country is away from the English rule. [5] Some states, though they make provision for an accounting, make none for a discharge, and hold the executor suable after the estate has been distributed upon the chance that other property may be discovered later on. The judgment will be collectible out of assets in futuro, or quando acciderint, as was said in early days. ”

“ Another statute of high significance is one that makes provision for an appraisal of the assets. [10] If the executor discovers after the making of an inventory and appraisal that the assets of the estate do not exceed the amount of the widow's allowance, after deducting necessary expenses, he is to report the facts to the court. ”

“ The power was thus assumed to change a deficiency assessed against the executors of an estate into a deficiency to be assessed against a legatee who had shared in the estate. To determine the validity of that assumption and to settle other questions of statutory construction, a writ of certiorari was granted by this court.
First: The petitioner is not chargeable in this proceeding with liability as legatee under the will of a deceased shareholder in the taxpayer, a corporation now dissolved. ”

“ What emerges, it would seem, is this: A discharge upon an accounting will be vacated in a direct proceeding if it appears that there were assets, not inventoried by the executor or included in his report, for which, when the decree was passed, he was properly accountable (Fraser v. Fraser, 149 Ill.App. 186, 187, 195, 196; cf. Musick v. Beebe, 17 Kan. 47, 53, 54) ; in the absence of such a showing, the discharge when decreed upon a finding of full administration will relieve the executor for the future of responsibility and power. ”

“ Especially is that so in view of the growing tendency of probate courts throughout the land to break the shackles of the ancient rule. Weighty considerations of expediency and justice explain this tendency and support it. ”

“ The amount of that liability was stated to be $24,000, but was afterwards reduced to $8,000, the cash received by the testator. In announcing this assessment, the Commissioner acted in reliance on section 280 of the Revenue Act of 1926 (26 U.S.C. App. § 1069, 26 USCA § 1069 and note) ; which permits an assessment against the transferee of a taxpayer upon the taxpayer's default. Before the passage of that act, shareholders who had received the assets of a dissolved corporation might be compelled to discharge unpaid corporate taxes, but only by bill in equity or action at law. ”

“ Section 281 (b) being found to be inapplicable, we have still to determine whether executors who have been discharged after a full settlement of the estate are subject by the law of Illinois to assessment or suit in their representative capacity. ”