Foscue v. Lyon

BRICKELL, C. J. —

The clear intention of the testator, in the bequest under consideration, was the creation of an interest-bearing fund of fifty thousand dollars, the annual interest on which should be paid to his daughter during her life, and the principal of which, remaining undiminished at her death, should be settled on and vest in her children. The mode adopted by the testator of accomplishing his intention, was a general pecuniary legacy of fifty thousand dollars in cash, to the appellee, in trust, to be by him invested in safe or productive stock or stocks, or placed at interest on good security, as in his discretion would seem best. As trustee, the appellee was charged with the duty of receiving the legacy, investing it, collecting annually the dividends, if invested in stocks, or the interest, if placed at interest, and the payment thereof to the life-tenant. The parol evidence introduced by the appellee, of the instructions given by the testator to receive the Breitling note in payment, or in lieu of the money bequeathed, is not entitled to any influence in determining any question now presented. The will is clear and unambiguous in its terms ; the subject matter of the bequest, the persons who are to take, the duration of interest, and the duties of the trustee, are clearly defined and expressed. No verbal instructions given to the trustee can be received to vary or alter the bequest in any of its terms. The evidence offered would tend to vary the character of the bequest, from a general legacy of quantity merely — of fifty thousand dollars in money — into a specific bequest of a chose in action. The bequest, as it is written in the will, is payable after debts, from real or personal assets, in preference to any right of residuary legatees or devisees, and can fail only because of a deficiency of assets. Lewis v. Darling, 16 How. 1. The parol evidence would con *450 vert it into a specific bequest of a chose in action, failing, if from any cause that should fail, before payment or delivery to the trustee. The authority of the trustee to receive the note on Breitling, in payment of the legacy, cannot depend on these verbal instructions, but must be derived from the terms of the bequest, and the duties it imposes. These cannot be increased or abridged by any verbal expressions of the testator.- — Torbert v. Twining, 1 Yeates, 437; 1 Greenl. Ev. §§ 287-291; Hughes v. Wilkinson, 35 Ala. 453.

2. It is claimed by the appellants, that the trustee was without authority to receive any thing but money in satisfaction of the legacy — that it was a gift of money, and, the estate of the testator being ample for its payment, after the payment of debts, it was at his own peril that he received ehoses in action, instead of money; and that they have an election, either to take such ehoses, or to hold him liable for money, as if he had collected it. The duty of the trustee, if he had received money, would have been its investment, either in stocks, or by placing it at interest on good security. If the testator had owned safe and productive stocks, which came to his executors for administration, we can perceive no reason for a rule which would prohibit the trustee from taking such stock from the executors in satisfaction of the legacy. He could, in the exercise of the power conferred, have employed the legacy, if converted into money, in the purchase of such stocks from the executors. It would have been an idle ceremony, to have received money with one hand, and paid it back with the other; as would have been the transaction, if the executors had such stock, and the trustee had compelled the payment of the money, and with it purchased the stock from them. The executors had no such stock, nor was there any safe and productive stock in which the trustee could have invested, if the money had been paid him. The domicile of the testator was here; his estate, real and personal, was situate here; the will was of probate, and the administration of the estate was here; this was the domicile of the trustee; and it was necessarily contemplated by.the testator, that the legacy should be paid, and the trusts executed here. By the state of things existing here when the legacy was payable, when the executors had the right of paying, and it was the duty of the trustee to receive, it must be determined whether the trustee was acting discreetly in receiving the ehoses in action in satisfaction of the legacy. We can not concur in the view, that it was without his authority to receive any thing else than money in its satisfaction. He could not have taken a conveyance of real estate; for that would have been a conversion of the char- *451 aoter of the thing given, and of the character of the gift; and though producing rents and profits, it would not have yielded dividends, or interest. Nor could he have received personal property, which could by a sale only be converted into an interest-bearing capital. But he could receive stocks, or other dioses in action, in which he could have invested the money, if that had been in his hands for investment. In fact, the transaction is simply an investment of the legacy; and the same result is reached, that would have been reached, if the money had been paid to the trustee, and then invested in the dioses in action received in the place of the money.

3. The trustee having authority to receive dioses in action, as he could have purchased, the inquiry is, whether, in receiving them, and in their subsequent management, he has acted in good faith, and with reasonable diligence. The good faith of the trustee is not questioned; nor can it be doubted that, in his administration of the trust, he has been free from all selfishness, £¡,nd solicitous only to discharge with fidelity the duties imposed on him. If he has erred, it has been unintentional, and because of the unfortunate circumstances surrounding him, and the perils of the times during which the trust was administered. It was not his duty to have deferred the collection of the legacy until the termination of the war; nor can we say, even now, that it would have been prudent to do so, or that, if he had, more would have been than has been realized for the cestuis que trust. The war did not relieve the executors from the duty of paying the legacy, nor lessen the authority of the trustee to reduce it to possession. It did not suspend the settlement of estates, or the succession to them. Accepting the trust, the duty was imperative to reduce the legacy to possession, as soon as h could be done properly. In the performance of this duty, something must be left to his discretion; and the condition of the estate, and the rights of others having equal claims on it, must be considered. There were other general pecuniary legacies contained in the testator’s will, equally entitled with this legacy to payment, amounting to one hundred and forty-five thousand dollars. The payment of these could as well have been deferred, as the payment of this; and if all had been deferred, it is not probable so much could have been received on account of this, as has been realized and accounted for by the trustee. The only alternative left the trustee was the putting the legacy at interest. There were no stocks in which a safe and productive investment could be made. If this was not shown by the evidence, it would be vain for a court to disavow knowledge of a fact forming such a prominent part of public history. There *452 were no public securities marketable, except those of the State, and of the Confederate States, issued to aid in the prosecution of the war. These fluctuated in value, as. the fortunes of the battle-field varied; and when the war closed, the result was the destruction of the Confederate Government, and of its securities; and the State was compelled to a repudiation of its securities, and an interdiction of all compensation to the holders, though not sui juris — though idiots, or lunatics, or infants, or married women. If there were private corporate securities, falling within the term dock, as employed in this bequest, they were affected in value by the extraordinary circumstances and perils .of the times; and they have shared in the calamity which wrecked the industry and the greater part of the property of the State. We repeat, the course adopted by the trustee, putting the legacy at interest, was discreet and judicious, within the line of his authority, and, in fact, the only alternative left to him.

4. In what other mode, than that adopted by the trustee, could the money have been more safely put at interest ? It is the investment in the Breitling note and mortgage alone, of which complaint is made. In determining the prudence of the trustee, it is a material fact that this was an investment made by the testator himself. It was a mode he adopted for the disposition and safe-keeping of money placed at interest. The security was of his own selection, when he had the absolute power of requiring “ good security” to use the terms of the bequest. It is a general rule, more firmly established in this country than in England, that trustees, in the execution of trusts, not having knowledge of the facts rendering it imprudent, may adhere to the course pursued by the person creating the trust, while he had the property within his control and disposition. — 3 Lead. Cases Eq. 474; Perry on Trusts, § 465; Harvard College v. Amory, 9 Pick. 446; Estate of Esther Bond, 1 Parsons’ Eq. Cases, 524. This case does not require us to go further than to say, that the fact that the trustee is merely continuing an investment, made by the testator, is a material circumstance in his favor, in determining the prudence of his conduct — in acquitting him of negligence. All that can be exacted of him is diligence and fidelity in the discharge of his duties — the exercise of that prudence and care in the management of the trust, which men of ordinary prudence exercise in like business of their own. When the Breitling note and mortgage was accepted, that it was a safe investment of the trust fund, indeed a desirable investment, it is impossible to doubt. After the war, when the large number of slaves covered by the mortgage were emancipated, and lost as security, the *453 lands conveyed yielded at public sale more than the principal of the note. What other investment would have been less deteriorated in value? In the mean time, more than ten thousand dollars of the accumulated interest was paid. It was not possible, bound as the trustee was to the duty of investment, to have secured one more beneficial to the cesbuis que trust — one in which the fund would have been more secure, and less liable to be lost. The trustee, if he had received money — gold and silver — in payment of the legacy, could not have converted himself into its mere custodian, burying it away in a napkin, until the war closed. The duty of investment was as imperative, as the duty of receiving it was, indeed, the very purpose for which the duty of receiving was imposed. The time when the duty of investing devolved was inauspicious, and the choice of investments necessarily very limited. There were but few willing to contract debts, and fewer still who would venture on loans of money in large sums. If there were borrowers, they could have given no other or better security than of the kind attached to the Breitling note. It would be a harsh, if not a cruel judgment, that would now pronounce that the trustee had not observed the full measure of diligence the law requires, in accepting that note and mortgage as an investment of the trust fund.

5-6. The principal of the notes on Sledge &, Compton and Breitling, amounting to forty-six thousand and eighty dollars, did not eqiial the amount of the legacy. It was the duty of the trustee to convert so much of the accrued interest into principal as would have made it equal to fifty thousand dollars. A reasonable time for such conversion was allowed him, and that time must be regarded as having elapsed, when in May, 1863, he made the collection of interest on the Breitling note. So much of the interest then collected must be added to the principal of the notes as will make fifty thousand dollars ; and from that time the principal of the legacy must be computed as fifty thousand dollars. The remainder of the interest, and the subsequently accruing interest, is payable to the tenant for life. If, as the record indicates, this interest was collected in Confederate treasury-notes, and without fault on his part any portion of it perished in the hands of the trustee, under repeated decisions of this court, he is not answerable for the loss. In that state of facts, if the amount lost equalled, or exceeded, the amount necessary to be added to the principal of the notes, to make the legacy in principal amount to fifty thousand dollars, the deduction must be made from the principal of the legacy, reducing it again to the principal of the promissory notes. *454 If any of tbe Confederate notes lost remain, tbey must be deducted from tbe interest payable to tbe life-tenant.

7. Tbe rule in tbis State is, that interest upon general pecuniary legacies is not payable until tbe lapse of eighteen months from the grant of letters testamentary. — Hallett & Walker v. Allen, 13 Ala. 554. Tbe executors were in error, in paying tbe trustee interest on tbe legacy from tbe day of tbe testator’s death. Tbe error was carried into tbe final settlement of their administration, and tbey were allowed credit for tbe payment, as if it bad been legally made. Tbe lapse of time bars an appeal from, or any other¿revision of that settlement. Tbey have not demanded any correction of tbe error, nor sought to recover from tbe trustee tbe overpayment ; and if it is recoverable, a matter it is unnecessary now to consider, tbe statute of limitations is a bar to a recovery. A legal advantage has thus been obtained by tbe trustee, doubtless under mere misapprehension of tbe law on the part of tbe parties to tbe transaction ; yet it is an advantage which must accrue to tbe trust estate, and with which it is not in bis discretion to part. It is an inflexible rule, founded in public policy, that a trustee cannot convert himself into tbe adversary of tbe cestui que trust: be cannot deny, or set up an adverse title, to the title of tbe cestui que trust. Perry on Trusts, § 465. Having in bis fiduciary capacity received this excess of interest, though it was not legally payable, be must account for it. Tbe chancellor, therefore, erred in decreeing that, in tbe statement of tbe account, tbe interest on tbe legacy should be computed only from eighteen months after tbe death of tbe testator. The trustee must be charged with all be has received. He should be charged with tbe notes of Breitling, and Sledge & Compton, as be received them from the executors. Tbis excess of interest is payable to tbe life-tenant, after a sufficiency thereof has been converted into principal, in tbe mode we have stated, to make tbe principal aggregate fifty thousand dollars.

8. Having received the notes in satisfaction of tbe legacy, tbe duty devolving on tbe trustee was due diligence in their collection. "Whether be has exercised it, depends on tbe particular facts of tbe case, tbe purposes of the trust, and the peculiar circumstances surrounding Mm. Until tbe war closed, there was no other than Confederate currency, in which collections could be made. Compulsory collections were suspended by tbe state of affairs which tbe war produced, and by laws which could not be resisted. Delays in collection during that time were unavoidable; and if loss resulted from them, personal liability cannot be visited on tbe trustee. Tbe loss is not a consequence of bis want of dili *455 gence. No diligence on bis part could have prevented it, and it is only his own misconduct which can involve him in personal liability. — 2 Story’s Eq. §§ 1268-1272; 3 Lead. Cases Eq. 468; Dean v. Rathbone, 15 Ala. 328; Gould v. Hayes, 19 Ala. 438.

9. The trustee could properly have loaned the legacy, if in his hands in money, on mortgages of real estate. Such mortgages are regarded as good security ; and, perhaps, here, the least objectionable of securities trustees having money to loan can take. Ordinarily, in the absence of all evidence of facts showing the contrary, a loan or advance, not exceeding in amount two-thirds of the value of the real estate conveyed by the mortgage, is regarded as prudent; and the trustee is not responsible for loss which may ensue from the subsequent deterioration in value of the premises.— Perry on Trusts, § 457; 3 Lead. Cases Eq. 450-453; Twaddle’s Appeal, 5 Barr, 15; Macleod v. Annesley, 16 Beavan, 600; Stickney v. Seawell, 1 Myl. & Cr. 9. Whether the trustee was making a loan, or receiving parts of the purchase-money, in the arrangement with Curtis and Jones, the purchasers of the Breitling lands, is not material. Whatever may have been the form of the transaction, it was in fact an •investment of the trust funds, within his authority. The investment did not exceed two-thirds the value of the lands, and was sanctioned by law, in the absence of evidence showing that the lands were not sufficient security.

10. The trustee certainly was without authority to change the character of the legacy. He could not convert it into realty. But, in the purchase of the “ Calhoun plantation,” the trustee was not making such conversion. The purchase was indispensable to save the trust fund from loss. Jones, the debtor, had fled thfe State; all other property of his that could be reached for the payment of debts, had been subjected under legal process; and whatever of the debt due from him the lands failed to pay, would have been a loss to the trust fund. Under these circumstances, the trustee not only had power, but it was his duty to purchase the lands, if he did not exceed their fair value. That he did not, is apparent from the fact, that, in a'few days after the purchase, he was offered by solvent purchasers the price he gave for them. In Perry on Trusts, § 458, it is stated, and the authorities referred to support the statement, that in case of a grave emergency, a guardian may buy in land for the minor, to save a certain loss ; so, an administrator may buy in the land of a debtor to his estate, to save the debt. Such an investment is a mere temporary expedient, and it is to be treated as personal estate. In Powell v. Strallon, 11 Grat. *456 792, an administrator baying in good faitb purchased lands, sold for tbe payment of a debt due tbe estate be represented, tbe purchase being in bis representative capacity, tbe land was treated as assets, and be was declared not’ liable for tbe price. Tbe trustee, by this purchase, saved for the trust estate tbe land, which was tbe only security for tbe debt. No loss has resulted, except from tbe depreciation of its marketable value, — a depreciation resulting from tbe monetary condition of tbe country. We concur with tbe chancellor, that tbe land must be regarded as a part of tbe trust estate, and its purchase confirmed.

11. Nor is tbe trustee chargeable, because be did not make sale of tbe lands, when Siddons proposed purchasing of him. Tbe rights of the cestuis que trust bad then attached; and without tbe authority of a court of chancery, be could not make a sale, which would have bound them.

12. We think, if tbe trustee, in making payments to Mrs. Eoscue, exceeded tbe interest, she is bound to protect him against loss, independent of an express promise to indemnify him. It is a general rule, that the cestui que trust ought to save harmless the trustee, who has honestly, without gain to himself, advanced or paid money for bis benefit. — Perry on Trusts, § 458. Her right was to the annual interest realized, or which by due diligence tbe trustee could have reabzed, from tbe investment of tbe trust fund. If she has received more, tbe duty of refunding, either to tbe remainder-men, or tbe trustee, if be is charged because tbe principal has been invaded, is imposed by law.' — Tiff. & Bull. on Trusts, 621; Mills v. Mills, 7 Sim. 501 (10 Cond. Eng. Chan. 168); Williamson v. Williamson, 6 Paige, 298. Tf tbe trustee bad not resigned, be could have retained from tbe annual income and interest payable to Mrs. Eoscue, until indemnified against loss, and tbe principal restored to tbe amount it would have been if it bad not been diminished by tbe payments to her. Having resigned, and a suit pending in which she is a party complainant, for an account of tbe administration of tbe trust, tbe estate being in tbe custody of a receiver appointed by tbe court, it was competent to direct tbe receiver to apply tbe income and interest to tbe indemnity of tbe trustee. Thereby tbe principal will be restored, for tbe benefit of tbe remainder-men.

13. We incline to tbe opinion, that tbe supplemental cross bill was unnecessary, and that a petition was tbe proper mode of obtaining all tbe relief to which tbe appellee was entitled. It was said by Chancellor Kent, in Codwise v. Gelston, 10 Johns. 530, it is difficult “to draw a precise line, between cases in which a party may be relieved upon petition, *457 and in which he must apply more formally by bill. Petitions are generally for things which are matters of course, or upon some collateral matter which has reference to a suit in court.” Whether relief shall be sought for by petition or bill, when it grows out of matters involved in a pending suit, rests largely in the sound discretion of the court. The parties here were all before the court; the pleadings in the suit put in issue their respective rights; the final decree will conclusively determine them; the trust fund is in the custody of a receiver, appointed in the suit, who is subject to the orders of the court. . Applications for orders, partaking of the nature of decrees, or of decretal orders, in a pending suit, are usually made by petition. — 1 Barb. Ch. 578. Such was the character of the order or decree, to which the appellee was entitled on the facts stated. This order would have been embodied in the final decree of the chancellor, confirming the report of the register ascertaining the balance due the appellee from Mrs. Eoscue. It was not only competent, but it was the duty of the chancellor, on the confirmation of that report, to order the receiver to apply the income payable to Mrs. Eoscue to the extinguishment of this balance. Justice to the remainder-men, and to the trustee, required it; and from the relation subsisting between them arises an equity to such an appropriation of the income accruing to her. Otherwise, she would take an interest in the trust fund, greater than that given her by the testator. The facts stated in the supplemental cross bill warranted an .order on the receiver, operating as a special injunction, staying all payments to her until the further order of the court. The supplemental bill may well be treated as a petition in the original suit, and should be so regarded in the future progress of the cause. So regarding it, we will not disturb the decree of the chancellor overruling the demurrer to it, or refusing a dissolution of the injunction, so far as it restrained the receiver from making payment to Mrs. Eoscue.

14. In refusing a dissolution of the injunction, so far as it operated on the real estate described in the supplemental bill, the chancellor erred. The fact that this real estate was purchased with the moneys the appellee had advanced to Mrs. Eoscue, gives him no lien on it, nor an equity to charge it with the repayment of such moneys. As to it, he has no other rights than those of a general creditor. When he obtains a final decree against Mrs. Eoscue, execution may issue on it, which can be levied on this, or any other property she may have, subject to levy and sale. But her employment of the money advanced her, in purchasing the real estate, creates no lien or trust. If he had from his own money *458 made a loan to her, that she might make a purchase of the lands, it would not be insisted that, from such a transaction, the law would imply a lien or trust on the land for the repayment of the money. This is the attitude of the appellee, so far as the real estate is concerned.

We have not had our attention called to any error in the specific instructions given the register, as to the manner of stating the accounts, or of separating the interest from the principal of the fund, at the different times when it is necessary such separation should be made, and the two carefully distinguished. After an examination of them, we think they are properly framed, and an observance of them will produce correct results.

• The evidence discloses that Augustus Eoscue, one of the remainder-men, has died. His personal representative is not made a party to the original bill; and it is wanting in averments which justify the court in proceeding to a final decree in the absence of such representative. The defect ought to be cured.

The result is, the decree on the original bill must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion. The decree on the supplemental cross bill is reversed, so far as it continues the injunction restraining Mrs. Eoscue from disposing of the real estate therein described. In other respects, it is affirmed. The appellee must pay the costs of each appeal.