82 Tenn. 553 | Tenn. | 1885
delivered the opinion of the court.
Several cases have been submitted to us, after full argument, growing out of the will of Wade H. Bolton, and the administration of his estate by the defendant, E. M. Apperson, the executor. Bolton died July 20, 1869, having made his will on the 10th of August, 1868, which was duly proved and admitted to record at the August term, 1869, of the probate court of Shelby county. E. M. Apperson was appointed execu
The will was written by the testator himself, but duly acknowledged before, and attested by witnesses, and is in the following words and figures:
I, "Wade H. Bolton, at my home place in Shelby county, Tennessee, being in good health, of sound mind and' disposing memory, knowing the uncertainty of life
First. After all my just debts and liabilities and funeral expenses are paid, .it is my will and desire-that my ashes may repose at the Pleasant Ridge Church burying ground, three miles below my homestead, and a suitable monument erected to my memory by my executor. ■
Second. I give and bequeath to my beloved wife, Lavinia Ann Bolton, if she survives my death, a lifetime dower in three hundred acres of land on my homestead, Hoboken plantation, in Shelby county, Tennessee, and a fee-simple title in all my personal part of my estate in Tennessee, except my gold watch, money, bonds, bank stocks, and my stock of all description that I die seized and possessed of.
Third. I give and bequeath to Lavinia Ann Bolton,, my wife, if she survives my death, ten thousand dollars in money in fee-simple title forever, in addition to my life policy of ten thousand dollars insured in the Carolina Life Insurance Company, at Memphis, Tennessee, for her use and benefit, provided that she does not dissent from this will and involve my estate in unnecessary litigation.
Fourth. T give and bequeath Seth W. Bolton five-thousand dollars, provided that he lends an assisting-hand and helps to defeat this gigantic swindle that old Tom Dickens and his tool, Sarah W. Bolton, has instituted against his father’s estate and mine in the chancery court at Memphis, and the onus of proof shall be upon him to show to my executor that he
Fifth. I give and bequeath to Mary L. Bolton, now the wife of E. C. Patterson, and the children of her body' by Patterson, five thousand dollars, provided that her and her husband, E. C. Patterson, does all they can in assisting me to defeat this gigantic swindle of old Tom Dickens and his tool, Sarah W. Bolton, has instituted against I. L. Bolton’s estate and mine in chancery court at Memphis, and the onus of proof shall be on them to show my executor they have done all they can to defeat the same. In this event my executor shall have five years to pay the same, without being coerced by law.
Sixth. I give and bequeath my niece, Lucassia Bolton, now the wife of Joseph A. Andrews, if she survives my death, five thousand dollars, to be invested in a piece of land for their mutual interest and support, provided her and her husband, Joseph A. Andrews, is my friend and co-worker in helping -all they can to defeat this gigantic swindle of old Tom Dickens and Sarah ~W. Bolton, his tool and ally, in
. Seventh. I give and bequeath my niece, now Miss Wade Bolton, five thousand dollars, provided she is and so remains a true and faithful friend of mine, and does all she can to defeat this gigantic swindle of the old land pirate, Tom Dickens, and Sarah W. Bolton, his ally, against her father’s estate' and mine in chancery court at Memphis, and the onus of proof •shall be upon her to show she has done all she could to defeat the same. In this event, my executor shall have full power to judge and pay the money, or invest the same in property for her present and future support. I also give her my gold watch.
Eighth. I give and bequeath my niece, Josephine Bolton, now the wife of the notorious Doctor Samuel Dickens (the Judas of the family), five dollars, one-sixth of what Judas Iscariot got for betraying the Lord. Poor Jo! her cup of iniquity will be full after awhile, if she ever gets - time to stop her mad ■career, trying to help .swindle her sister, and her memory will let her mind reflect back upon her childhood days when she sat under the shade-trees and ■roof of her father and mother, and saw the streaming tears and heard the bitter sobs of her departed mother portraying in the ears of her father that some distant day that old Tom Dickens would swindle them and their children out of all they had and bring them to •need and want. The prophecy is fulfilled in 1868, •and her daughter Jo. is lending a helping hand.
Tenth. I give and bequeath my nephew, Josephus Bledsoe, and his sister, Mary Tisen Bledsoe, three thousand dollars each, provided, that him and her is my friend and co-worker in helping all they can to defeat the gigantic swindle of old Tom Dickens and Sarah W. Bolton, his tool and ally, against me and Isaac L. Bolton’s 'estate, and the onus of proof shall be upon them to show they have done all they could to defeat the same. -In this event, my executor shall have full power to judge and pay the legacy in any time in five years after my death.
Eleventh. I give and bequeath to the widow and' children of General Thomas Jonathan Jackson, known as Stonewall Jackson, who fell at the battle of Chan-cellorsviUe, Virginia, ten thousand dollars, as history tells me his widow’s furniture was sold after his death for debt.
Twelfth. Fidelity is the noblest trait of human beings and should be rewarded, therefore I hereby
Thirteenth. I hereby instruct my executor, if he thinks best, to sell all my real estate in Tennessee or any other State, everywhere, together with my Hoboken farm, where I reside, reserving the dower of three hundred acres given my wife her lifetime.
Fourteenth. I hereby give and bequeath, after the death of my wife, the three hundred acres of land re- ’ served in the thirteenth clause of this will, to the trustees of the free schools of Shelby county, Tennessee, and their successors in office, forever, for the purpose of erecting a college of learning on the same, and hereby give and donate ten thousand dollars for the purpose of erecting and building a college of learning on the same, to be called Bolton College.
Fifteenth. I give and bequeath the residue and remainder of my estate that is not otherwise donated, if any there be, to be paid over to the chairman or judge of the county court of Shelby county, Tennes
Sixteenth. I hereby instruct and empower my executor, if any of the legatees mentioned in this will •owes my estate any thing at my death, either themselves, husbands or wives, it shall be deducted out of their part of the legacy, with interest; or if any of them forces unnecessary lawsuits on him in winding up my estate, he shall have the power to charge them with the lawyers’ fees in defending the same out of their part of the legacy on the final settlement.
Seventeenth. Should I die before this fraudulent suit of old Tom Dickens, and his tool and ally, Sarah’ W. Bolton, has instituted against me and Isaac L. Bolton’s estate is decided, I want my executor to defend the same to the bitter end, as I know, and the world should know, I don’t owe him one cent, or they would not sleep on their rights for eleven years, and myself and Isaac L. Bolton both being solvent, and punctual to pay our debts on demand.
Any of the legatees mentioned in this will coalescing or affiliating, or aiding or abetting in anywise, •shape or manner, directly or indirectly, with old Tom
Eighteenth. I hereby make, constitute and appoint E. M. Apperson, of Memphis, Tennessee, executor of this my last -will and testament, without security, to see that .this will is carried out faithfully. I also here desire and request of him that he shall publish the same for one month in some daily newspaper in Memphis. I also hereby appoint Beecher & Belcher my attorneys.
• Lastly, I hereby revoke all wills and codicils by me heretofore made, and declare this to be my only last will and testament. .In witness whereof I hereunto set my hand and seal, at my plantation at home, in Shelby county, Tennessee, this the 10th August, 1868. W. H. Bolton.
The legacy, under the eleventh clause of the will, to the widow .and children of Stonewall Jackson, has been paid, and there is now no controversy in relation to it. The action, of the executor in relation to the legacies to the freedmen, under the twelfth item of the will, has been acquiesced in, the legatees having been promptly paid their respective bequests. There is also no controversy as to the rights of the trustees of the free schools of Shelby county, under the fourteenth item of. the will, as settled by the chancellor. The executor refused to pay the legacies under the fourth and fifth items, and the liability of the estate
A legacy is conditional when it is made to depend upon the happening or not happening of some uncertain event, by which it is either to take place or be defeated, and the condition may be either precedent or subsequent. No precise form of words is required to create a condition in a will, but any expression sufficiently disclosing the intention will have that effect. And there is no distinction in the matter of technical words between conditions precedent and conditions subsequent. “The same words,” says Willes, C. J., “would make a condition either precedent or subsequent, according to the nature of the thing and the intent of the party”: Acherley v. Vernon, Willes, 153. The question is whether the testator intend that a compliance with the requisition, which he has chosen to annex to the enjoyment of his bounty, shall be a condition to its acquisition, or merely of its retention. The construction must depend upon the intention of the parties as gathered from the instrument and the existing facts: Bowder v. Walker, 4 Baxt., 600, 604;
STo one can read the will in this case without seeing at once that the legacies in controversy were intended by the testator to be made to depend upon a strict compliance with the requisition which he has chosen to annex to the enjoyment of his bounty. The testator has obviously at heart the defense of the “gigantic lawsuit,” and the principal, if not the only motive of the gifts, is that the legatees will aid in the defense. Each bequest is followed by the condition preceded by the technical word “provided,” and the “onus of proof” is thrown upon the legatee to •show a performance of the condition to the satisfaction of the executor, who “ then ” or “ in that event ” is to judge and pay the legacy. So strong is the intent of the testator on the subjuct, that he has even provided, by the seventeenth item, that the legacies shall be forfeited after they have become vested, if, on sufficient proof, the executor shall find that the legatee has aided or abetted the other side. In some of the
The proof shows that whatever 'delay occurred, after the termination of the “gigantic lawsuit,” in the payment of the principal of the legacies which were paid, was occasioned by the legatees themselves. Our conclusions above cover all the points made in the exceptions to the report of the Referees in the cases in which the legatees seek to recover interest
The other two bills, filed under, these conditional bequests, seek to recover the principal of the legacies,, which the executor refused to pay. One of these bills is by the assignee of the legacy to Seth W. Bolton, made by the fourth item of the will. Seth W. Bolton, on August 23, 1876, assigned this legacy, or his interest therein, to his sister Wade, the wife of G. H. Millington, and afterwards died on December 8, 1877. The bill was filed on January 4, 1882, by Millington and wife, claiming under the assignment. The legacy was upon the same condition as the other legacies under consideration, and could only vest upon, the performance of the condition. The executor insists that Seth W. Bolton did not comply’ with the condition, and there is no proof that he did, the “ onus of proof” being upon him, and, of course, upon his assignee. On the contrary, the exeuctor proves affirmatively conversations with Bolton tending to show that his feelings, and, as he himself said, his interests were with the other side in the “ gigantic lawsuit.” We see no ground for interfering with the judgment of the executor against the legatee made in accordance with the will. We think also that the indebtedness of Seth W. Bolton to the estate at the death of the testator, which, with interest, largely exceeded any possible claim under the legacy, was properly allowed as a deduction under the will. He had, it is true, previously filed a petition in bankruptcy to-be discharged from his debts, but he had not then
The remaining case is based upon the fifth item of the will. That bequest is to “ Mary L. Bolton and the children of her body by E. C. Patterson.” It is conditioned upon Patterson and wife assisting to defeat the “ gigantic lawsuit,” the onus of proof being upon them to show the executor “they have done all they can to defeat the same.” “ In this event,” adds the . will, “ my executors -shall have ■five years to pay the same without being coerced by law.” Mary L. Patterson died November 1, 1873, leaving two children by Patterson. The original bill was filed February 22, 1881, in the name of the two children, by their father as next friend. The father died November 8, 1881, and on August 11, 1882, one of the children died. On October 18, 1882, an amended and supplemental bill was filed in the name of the ■ surviving child by his general guardian, and Chas. A.
The condition that Patterson and wife should assist to defeat the suit, is, as we have seen, a condition precedent, and goes to the whole legacy. The bill avers that they did • assist, and the answer denies the fact. There is no averment that the complainants ever offered to show the executor that Patterson and wife had rendered the required assistance, or that Patterson and wife, or either of them, ever made such a showing. There is no averment that the executor has acted corruptly or. wrongfully in reaching the con-, •elusion that the condition was not performed. It must be conceded that his action is not a- matter of arbitrary discretion, for he is required to judge upon proof. If, therefore, proof had been offered to him by Patterson and wife, or either of them, or by the complainants, and he had refused to receive it, or had
The only witness introduced by the complainants on this branch of the case is a lawyer who represented Dickens in .this gigantic lawsuit. He says that he cannot recall any instance in which Patterson did any thing to defeat the suit, but he has a strong impression from the general conduct of Patterson that he was the active partisan of the Wade H. Bolton side. He cannot, he adds, give particular facts". Another witness says that Patterson and wife “were both in sympathy with the side of the case that Wade H* Bolton was on.” The executor testifies that he never ‘considered that Patterson and wife had complied with the conditions of the legacy, or recognized them, or either of them, entitled thereto. Neither Patterson nor his wife, he- says, ever did any thing to assist in the defense of the suit, nor did Patterson satisfy him that he had done all that he could, or in fact anything to aid him in defending the suit; “on the contrary,” he adds, “ it is my opinion he aided and
In this connection, it may be stated that in this case, as well as in the bill filed for the recovery of the legacy of Seth W. Bolton, the point is made that the condition imposed by the will upon the vesting of these legacies is against public policy, and therefore
The executor has shown, by the production of the notes of E. C. Patterson to the testator for money, and other notes of Patterson with the testator thereon as surety, which the testator or executor was compelled to pay, that Patterson was, at the death of the testator, indebted to the estate in an amount exceeding, with interest, the legacy in controversy. This indebtedness was at one time pleaded as a set off to the suit of Patterson against the estate above meu-
This brings us to the bill of Lavinia A. Cannon,, the widow of Wade H. Bolton, and the cross-bill of the residuary legatee. The principal object of these bills is to obtain an account of the administration of the estate by the executor, and the principal question raised is whether the executor shall be charged with any, and what interest on the funds in his hands.
The personal assets of the estate consisted of:
United States bonds,.$ 57,000 00
Money in bank about (subject to check) .... 4,000 00
Money deposited with E. M. Apperson & Co., . 13,139 82
Bonds, notes, etc., bearing interest, of which were
collected about. 152,491 47
$226,631 29
The income of the estate in the way of interest on the assets as collected, rents, etc., amounted, in addition, to over $80,000, exceeding the expenses of
To legatees and the widow,.$ 92,745 50
Upon other liabilities of the estate,. 54,802 68
$147,548 18
The larger part of the payments to the legatees was made after the termination of the “ gigantic lawsuit” in May, 1880. •
The executor returned to the probate court an inventory and supplemental inventory of the assets of the estate which came to his hands, as to which there is no complaint. He made regular settlements with the clerk of the probate court. Ten of these settlements were made before the bill of Cannon and wife was filed on February 15, 1881. These settlements were all ex parte, without the notice to the parties interested prescribed by the Code, sec. 2298, and without the attendance of any of those parties. In the first of the settlements, made in July, 1871, the executor is charged with $135,250.93, and credited with expenditures and commissions amounting to $23,489.43, showing a balance of debit agaiust him of $111,767.50. His subsequent settlements up to the last show larger balances against him, except the fourth settlement, when the balance was $104,394.80. The sixth settlement shows a balance of debit of a little under, and the seventh settlement a little over $140,000. The balance found by the eighth settlement in 1879 is $156,-931.29. All of these balances must be increased by $13,129.82, the amount of money deposited by the testator with E. M. Apperson & Co., subject to check,
No principle is better settled, or founded upon a sounder basis of legal ethics and ■ positive law, than
It is the final settlement of the personal represen
All the authorities agree, and it is conceded, that an executor will not be allowed to make a profit out of trust funds in his hands. If, therefore, the defendant, Apperson, as executor, had loaned the assets of the estate to his firm, it is admitted that he would be required to account for the profits, and would be chargeable with simple or compound interest, according to the circumstances, in the absence of proof of the actual profits. The contention of the defendant’s counsel is, that the casé is taken out of the rule by the
Banks are financial institutions regulated by law, one branch of whose business is to receive money on deposit subject to check, the money deposited becoming their property, to be used subject to those rules of law or custom which limit the amount used so that a sufficient fund may always be on band to meet the cheeks of the depositors. The proof shows that about half the deposits are thus retained at Memphis, the residue being used in the discount of commercial paper, secured by personal endorsement or good col-laterals. Experience has shown that banks properly conducted may be run with profit to the bankers and safety to the depositors. Accordingly, they have been recognized as safe depositories for the deposit by trustees of trust funds which the exigencies of the trust require shall be kept on hand. But the recognition has never been extended by the courts to deposits with mercantile firms, as a general rule, for the obvious reason that there are no restrictions, either by law or custom, upon the use of such deposits by such firms, and the whole amount may be used for speculative purposes, or under the exigencies of trade, without any of the safeguards existing in the banking business. lío case has been produced in which a general deposit of trust money with a . trading firm has been sanctioned by the courts. The nearest case
No trustee can be allowed to make a profit out of the trust funds in his hands, for that would at once place him in antagonism to his beneficiaries, and offer him a reward to work against them. The temptation would be in the case of an executor, as suggested by Judge Reese in Turney v. Williams, to make the estate worth more to him than to the legatees. The mere fact that a trustee was. a common stockholder in an incorporated bank would not, of itself, charge him with interest for making a deposit as trustee in that bank, if the bank be one in good credit* and such as an ordinarily prudent man might select, as a depository in his own business. But it might be otherwise if he were the sole stockholder, or much the largest stockholder. And assuredly the trustee, who was a partner in a private banking firm in which he deposited trust funds, would be chargeable with interest or profits if the deposit were continued for an unreasonable time, or under such circumstances as to show that it was made with a-view to profit. And equity must disallow, upon general principles, without reference to advantages or unfairness, the right of a trustee to deposit money with a trading firm of which he is the member, and especially if he be the controlling member in interest and management. It would be to allow him to do indirectly what he could not do directly, loan the money to himself. It wo.uld open too wide a door to the unscrupulous to sanction
There having been a breach of trust, the executor is chargeable with interest at the legal rate, although he may not have made a profit equal to that rate of interest, and ordinarily, as we have seen, the liability of executors is confined to simple interest. To charge him with compound interest, it should appear that the nature of the trust required him to make the funds productive as soon, and to as large an amount, as practicable, in a mode prescribed, or in some other-reasonable way, at his discretion, or it must appear directly or inferentially that he has made profits to the extent of compound interest: Diffendorfer v. Winder, 3 G. & J., 329, per Bland Ch. In cases of doubt, the beneficiary may elect to take the profits. In this case, the executor was not required by the will to make the funds productive. He is only chargeable with interest by reason of the use of the funds. It does not appear that the firm of E. M. Apperson & Co. made profits in excess of simple interest. On the contrary, the proof tends to show that in the period from 1869 to 1880, during which there was the financial crash of 1873, followed by years of depression in trade and the value of property, and two successive yeai’S of epidemic yellow fever at Memphis, there may have been a loss instead of a profit. It is true the
The executor made, as we have seen, a full and satisfactory inventory of the assets of the estate, and yearly settlements of his accounts. No error has been found in these settlements, except an item of interest on United States bonds and premium thereon of' $593.43, omitted to be charged, which was pointed' out by the executor himself. It is true, the executor failed in his ten settlements to. charge himself with-
The executor paid a large amount of taxes on the personal assets in his hands levied by the municipality in which he resided. The complainants insist that the taxes were improperly paid. It is conceded that the legal title to the property was in the executor, and that the situs of the property for the purpose of taxation was the domicil of the executor : Mayor, etc., v. Alexander, 10 Lea, 475. But the contention is, that by the Code, sec. 541, sub-sec. 7, the taxation of
Objection is taken to a credit of $6,000 allowed by the chancellor to the executor for a monument erected over the testator’s grave. The objection comes from the residuary legatee alone, the widow having assented to the expenditure. The first item of the will is: “After all my just debts, liabilities and funeral expenses are paid, it is my will and desire that my ashes may repose at the Pleasant Ridge Church burying ground, three miles below my homestead, and a suitable monument erected to my memory by my executor.” The testator was in fact buried by his widow in Elmwood cemetery near Memphis before the will was proven or the executor qualified. The monument, selected by the executor as suitable, was, with the advise and approval of the widow, erected in Elmwoood cemetery over the remains. The executor offers, at his own expense, to remove the body and monument to the Pleasant Ridge Church burying ground, a neighborhood burial place adjacent to a country church, if the court should deem it to be his duty to make the removal. The controversy is therefore narrowed down to the question of what ought to be the cost of a “suitable monument” for the deceased. There is no
Another objection is made to the fees of one of the counsel of the executor in the “gigantic lawsuit.” Rut the proof introduced by the executor goes to show the performance of the services, and the reasonableness of the compensation, and there is no proof to the contrary. Under these circumstances, although the amount goes to the verge of liberality, we do not see how we can interfere.
The widow of the testator, it will be remembered, dissented from her husband’s will in September, 1869, and continued in her dissent, so far as appears, until the filing of her amended bill in this cause on
Conceding that she is bound by her election, the widow contends that she is entitled to her distributive share of the personalty in gross, without any deduction for its proportion of the debts of the estate and expenses of administration. The statute regulating the widow’s right in such case is thus worded: “When a husband shall die leaving a will from which the widow dissents, within the time and in the manner now provided by law, and leaving no child, or not more than two, his widow shall be entitled .to
The Avidow objects to two credits allowed the executor for payments made by him to her on her distributive share of. the personal assets, one payment of $22,079.38 made in 1876, and the other of $32,636.12 made in 1880. But both payments were made to the widow as distributee, and LeAvis H. Cannon, her then husband, and formal receipts given therefor. There is not the least pretense for charging the executor with any thing improper in the transactions, what he did being at the instance of the Avife and for her accommodation. That she chose' to apply the-first payment to the wife’s indebtedness to E. M. Ap-person & Co., about which there is no dispute, cannot affect the validity of the payment. Neither can her deposit of the second payment with E. M. Ap-pers.on & Co. upon call, but bearing interest at the rate of six per cent., affect the validity of that payment. The husband and wife were entitled to the money, and the executor had the right to pay it to them, whether there was a marriage contract or not, the husband being the trustee of the wife if there was a contract. Nothing is said in the original or amended bill about any marriage contract, nor, of course, is any relief sought by reason of its terms. But, upon examining the marriage settlement, we find nothing in it to prevent the wife from receiving her distributive share, and disposing of it as she pleased, even by gift to her husband : Jackson v. Rutledge, 3
The widow’s right to the proceeds of the policy of insurance on her husband’s life seems to be clear. The only proof on the subject tends to show that the proceeds of the policy were made payable to her on the face of the instrument, and the money was paid to her by the -executor accordingly. In that view, she was entitled to the fund: Gosling v. Caldwell, 1 Lea, 454; Scobey v. Waters, 10 Lea, 555.
We think the executor’s accounts may be re-cast, in this court, perhaps during the present term, without a remand, upon the principles herein settled. And it is manifestly to the interest of all parties that the litigation should be brought to a close as speedily as possible.
Let a decree or decrees be entered in accordance with this opinion. The costs of the dismissed bills will be paid by the complainants in the respective bills. The costs of the bill of E. S. Patterson and Annie ~V. Millington will be paid by the executor out of the assets of’ the estate, and allowed him as a