54 Ala. 30 | Ala. | 1875
The will of the testatrix is in these words: “I give and bequeath all my property, both real and personal, to my husband, J. W. Myrick, to have for his own and children’s use, to be disposed of and given to his children as he may see proper, either before or after his death, but in no wise to be subjected to his, the said J. W. Myxick’s, debts.” At the death of the testatrix, she had three children born of her marriage, who were minors. The estate devised and bequeathed was the statutory separate estate of the testatrix. After the death of the wife, and the probate of the will, the husband, without administration granted, had and held possession, claiming under the devise and bequest. The real estate consisted of a plantation, which he cultivated. In its cultivation, he became indebted to the
Prior to this statute, repeated adjudications of this court had settled, beyond further controversy, that a trustee, in the absence of express power conferred by the instrument creating the trust, could not, by his contracts or engagements, impose a liability on the trust estate. The execution of the trust may have compelled him to incur expenses, or have required the employment of third persons, whose services became beneficial to the trust estate. Until he was reimbursed such expenses, and the claims for compensation of those employed by him were satisfied, he could not be compelled to surrender the estate. If he had received funds, or was in default to a sum equal to such expenses, he could be compelled to surrender, because he could retain, and was supposed to retain, the funds for his indemnity; or, if in default, from that default he should satisfy the claims of those employed by him, for which he was personally liable. The persons he had employed had no equity to charge the trust estate. Their demands were purely legal, chargeable only on the trustee.—Coopwood v. Wallace, 12 Ala. 790; Jones v. Dawson, 19 Ala. 672; Lyon v. Hays, 30 Ala. 430; Mulhall v. Williams, 32 Ala. 489; Wade v. Pope, 44 Ala. 690. These authorities would probably have authorized those who had rendered services to the trustee, and had exhausted legal remedies against him, to have proceeded in equity to subject any demand due from the trust estate to him, or to be subrogated to his rig'ht to charge the estate. The question was not directly presented, but the intimation was that such a remedy could have been pursued. It would have been unavailing, if the trustee was in default, upon an accounting of his administration. If in default, there could be no equity in him to charge the estate, and it was to his place and his rights only the party could have succeeded, or been substituted. An exception was recognized in favor of an attorney employed to prosecute suits for the recovery of the assets of the trust to this extent, if the trustee was insol
The obvious purpose of this statute is to charge this rale; to convert the claims for compensation for services rendered for the benefit of trust estates, on the employment of a trustee who has vacated the trust, or become insolvent, into charges on the trust estate, to be enforced against the legal representative of the estate, by an action at law. An entire change of the character of the demand is produced.' From a personal liability of the trustee, it is made a charge on the estate, burdening the rights and interests of the cestui gae trusts without regard to the state of the trustee’s accounts, or to the inquiry whether he could retain the estate for its payment. The right conferred by the statute, is a right attaching to the demand for compensation — a right independent of, and distinct from, the right of the trustee, to which right only the person rendering the services under existing law could have been substituted. The statute is not confined to the future — to demands for services rendered after its enactment. It was intended to operate on demands already existing, for services completely rendered, and such is the effect of its express words. If it was confined to demands arising in the future, the complainant could seek no relief under it, because the services for which he claims compensation had been fully rendered before its enactment. Whether it is competent, by legislative enactment, to change the character of existing demands, adding to them new obligations, converting them into charges on estates not before bound by them, is a question on which we will not now* express an opinion.
The right sought to be enforced — the right to change the. trust estate, not existing prior to, but being created by, the statute — the remedy for its enforcement, prescribed by the statute, must be pursued. The principle is.well settled that if a right, and an appropriate remedy, exists at common law, a statute providing a, new remedy in the affirmative, without a negation of the existing remedy, is cumulative merely. But when a statute creates a right, and prescribes the remedy, the statutory remedy is exclusive.—Sedgwick Stat. and Com. Law, 341; Vestry, &c., v. Batlebury, 2 Com. Bench U. S. (89 Eng. Com. Law) 477, and note on page 486. The remedy prescribed is an action at law against the legal representative of the trust estates. A bill in equity against the cesttiis que trust, not joining the representative of the trust estate, is not within the purview of the statute. The court
The demurrer should have been sustained, and the decree of the chancellor overruling it must be reversed, and a decree here rendered sustaining it, and dismissing the bill, at the costs of the appellee, in this court, and in the court of chancery.
