54 Md. 641 | Md. | 1880
delivered the opinion of the Court.
In this case suit was brought against the surety on a bond given by a trustee appointed under a decree for the sale of real estate, to recover a small sum of money ■audited to the equitable plaintiff out of the proceeds of sale. The facts necessary to be stated are substantially as follows:
Samuel Spickler died in 1838, leaving a will by which, •among other devises and bequests, he devised to his son Jacob, a farm in fee, but subject to certain charges thereon in favor of other parties. The will is set out at length
In November following, the auditor stated an account distributing the proceeds, and made a report in which he states that after deducting commissions, expenses and costs, he had distributed the balance ($3644.75,) first “ to the payment of the legacies and charges upon said estate created by the will of Samuel Spickler which is an exhibit in this cause, and then the remainder ($1256.25) after satisfaction of said charges to the heirs-at-law of said Jacob Spickler.” The account shows that among the items audited to satisfy these charges was the following: “To the children of Elizabeth Schleigh one-fifth of $1000, as per will of Samuel Spickler, to be paid at her death— $200.” The account was finally ratified on the 24th of February, 1845. From the order of ratification no appeal was taken by the heirs-at-law, the only parties injured thereby if the distribution was erroneous. They received the shares audited to them respectively, making no complaint, and the trustee retained the $200 audited to the children of Mrs. Schleigh until her death in 1877, a period of more than thirty-two years. She died leaving four children and six grandchildren, children of a deceased daughter, who thereupon filed a petition in the equity cause praying that the trustee be required to bring into Court this sum of $200 to be distributed to them. An order to that effect was immediately passed, and the auditor stated an account showing the amount due each petitioner. This account was ratified, and the amount thereby found due to the equitable plaintiff, who was one of these children, was the sum of $41.60. The trustee refused
This statement of the facts is of itself quite sufficient to show that the appellant has no valid defence to the action. The trustee sold the property and acquired possession of the proceeds by reason of this bond, and the $200 now in controversy are part of these proceeds. He-was bound to bring all the proceeds of sale into Court to be distributed under the Court’s order, and not to appropriate any part of them to his own use. Such were the express terms of the decree, and the condition of his bond.. Without doubt the surety was bound for the faithful discharge of his duty in respect to all the money he thus, received. It was of no consequence to the trustee, and no concern of his whether the sale he made passed to the purchaser only the title of the parties to the cause, and. left the charges still remaining as liens on the property or not. That was a matter in which the purchaser, the heirs-at-law, and the lienors were alone interested. How then does it lie in the mouth of the trustee or of his surety to say.-that the original audit of 1845 was all wrong, and that the Court had no jurisdiction to ratify such a distribution of the proceeds of sale ? That audit in nowise affected the trustee nor enlarged the obligation of his sureties. The result of sustaining such a defence to this suit, would simply be to allow the trustee, in palpable violation of his trust, to pocket and retain a part of the proceeds for his own use.
But we have no doubt whatever as to the jurisdiction of the-Court, and the propriety of its action in ratifying that audit.. It may be true that, at the time this sale was made, the lien which these children had under the will of their grandfather was not divested thereby, (Downin vs. Sprecher, 35 Md., 474,) and that that lien still exists, and will continue to exist, until discharged by receipt of the money set aside for its payment under this audit. But we do not see how
Another defence relied on in the Court below is the Statute of Limitations; but that this constitutes no bar to the action is settled by the cases of Thruston vs. Blackiston, 36 Md., 501, and Byrd & Crisfield vs. State, use of Stewart,
It follows that the judgment must be affirmed, and it is so ordered.
Judgment affirmed.