13 S.C. 561 | S.C. | 1880
Lead Opinion
The opinion of the court was delivered hy
This was a complaint in the nature of a creditor’s bill to marshal the assets of the estate of Napthili Phillips, deceased, against F. J. Moses and M. Moses, executors,, the legatees, and C. C. Law and other creditors. Phillips, the testator, died in March, 1864, leaving a will. He died in Marion county, where he lived, and where his property was situated, but the executors lived in Sumter county, where these proceedings were instituted. y
The history of the litigation, including a claim of exclusive jurisdiction in Marion county, would be long, but all the facts are so fully and clearly set forth in the Circuit decree that it will not be necessary to re-state them here. The plaintiffs are judgment creditors, having obtained their judgment in 1871, against the executors upon a demand due by Phillips in his lifetime. They levied and sold personal property of small value — law library, furniture, &c. — but, finding obstacles in the way of collecting their debt, they filed this complaint in 1872 for an account against the executors, to sell land, pay debts,, and to marshal the assets. The questions were referred to a referee, who stated the account and reported in favor of certain other claims presented. The Circuit Court rendered a decree, and the case comes up on exceptions.
One of the exceptions makes the point that the judgment of
In reference to the exception as to the alleged devastavit of the -executors in paying legacies to Ellen and Emily Phillips, leaving debts unpaid, the general facts are as follows: “ The testator died in. 1864, having given, his entire property to his executors in trust for his sisters, Ellen and Emily, during their lives, and the survivor of them, and after the death of both of them then over to his surviving brothers and sisters. The testator seems to have considered that he owed no debts, as his will makes no reference to debts; but that omission could not excuse the executors as to their first duty of providing for creditors. The executors qualified immediately, M. Moses, March 11th,
The executors would be liable if they paid legacies with a knowledge of outstanding debts, even if those debts had not been
It is further urged that as the legacies to Ellea and Emil/ were for life only, with limitation over, the executors had no right to pay them more than the interest, reserving the corpus for the remaindermen, and that the release which the remainder-men executed of all their interest, not being under seal, was void. Assuming that some such question might possibly arise between executors and beneficiaries under the will, it is not perceived that it touches the point under consideration here. This exception is overruled.
Under the call for creditors, made in the proceedings in this case, Bichard Jordan, as trustee, guardian and administrator, presented these claims against the estate, which he insists are valid bond debts, and entitled to priority as such. If these claims are established they will absorb all the assets which remain. They are as follows:
First. One George M. Fairlee was appointed trustee in regard to certain negro slaves belonging to Mrs. Margaret E. McNeill and her children, and gave bond July 21st, 1860, to C. 3D. Evans, Esq., then commissioner in equity for Marion county, in the penal sum of $8000, conditioned for the performance of cer
It is doubtful whether that part of the decree which ordered the claim recommitted is appealable, but as it has been earnestly argued, and will have to be considered below, we will entertain it. The obligation on which the claim is founded is not an ordinary money bond, in which the terms are, we or either of us promise to pay a certain sum of money, but an official bond for the performance of certain acts. “Now the condition of the above obligation is such, that if the above bound George M. Fairlee shall hold the property (negroes) upon the trusts as above described, &c., * * * then this obligation to be void and of none effect, otherwise to remain in full force and virtue,” <fec. The penalty is for a sum certain, but that is not to be paid as such, but was only intended to secure the performance of the covenants. The sureties promised to pay no sum of money, but that their principal would perform the duties specified in the bond, or, if not, that they would pay the damages which might result from his failure to do so. That is the extent of the undertaking of the sureties, who are in no way responsible until it appears that the principal had failed to perform' the duties he had assumed. Originally it was held, in this state, that a surety upon an administration bond could not be sued until a breach of the bond had been shown; until the principal had been held to account, had been found to be in default, and had failed to pay the judgment. “ Sureties on administration bonds are in no respect to be considered as trustees or accountable in this court (equity) as such. They are only parties to a law undertaking, and to be held responsible in damages for the default of their principal. They can be sued only after default of their principal
Second. George M. Fairlee died in 1862, and the testator, Phillips, was appointed his successor as trustee of Mrs. McNeill, and entered into bond to C. D. Evans, Esq., commissioner, in 1863, which was substantially a copy of the bond of Fairlee. Jordan, trustee, claims that the executors must account for the actings and doings of Phillips as trustee, and that this account is a direct liability covered by his bond. In this respect this claim does differ from the one just considered. But an objection is made to it that there is, in fact, nothing due under this bond.
Third. Rose B. Wheeler entered into a marriage settlement with John F. Quinn, of which "E. B. Wheeler was trustee; afterwards, Phillips, the testator, was appointed in his place, and gave bond, in 1860, to the commissioner, conditioned for the performance of his duties. Some of the property had been sold by order of the court, and the proceeds were paid to Phillips, the testator, in the year 1860. The Circuit decree states that it was “shown by his cash book and by the account of J. & J. D. Kirkpatrick, factors of Charleston, that the money was sent to them and deposited with them at seven per cent, interest, subject to his check, and in his own name; that it was not separated from his other deposits, but went to the general credit of his account. It is shown that for five years he had deposited all his own funds with these gentlemen, who were factors of the city of Charleston of high standing and credit, and that he had, in
This is not a case where the trustee has caused loss to his ■cestui que trust by calling in good and safe securities and accepting for them a depreciated currency. What he received was a payment on account of the trust. There is no breach of trust in receiving the money. We regard it established that he deposited the money with the Kirkpatricks, who were in good standing and continued so until after the testator’s death. The question must be determined by the inquiry whether that deposit, under the circumstances, was a prudent and judicious act. The money was received January, 1860, and February, 1861, when the war was imminent. The investments required in such cases could not then be promptly or safely made, if they could be made at all. The trustee had. a reasonable time to make the effort, and before that time expired, the country was in the midst of war. As was said by the court in the case of Waller v. Creswell, before cited : “ A civil war was raging fierce and devastating, when or how to terminate, human foresight could, with no approach to certainty, determine. Even if successful to the Confederacy, which was waging it, years of deprivation, toil and industry must probably have been endured to repair the broken fortunes of its people. Can we then say the act in question was an incautious or imprudent one?” So we say here, was the deposit with the Kirkpatricks, under the circumstances, whether we regard them as acting bankers or merely as factors in good standing, an incautious or imprudent act? The times made ordinary investments impracticable, and what was he to do with the money ? Even after the event — looking back at this
It is urged that the trustee mixed the money with his own. That would have charged him if he had used it in his own-business and ventures, and that use had caused it loss. But that is not charged. His only use of it, mixed with his own, was the single act of deposit. It is said he did not keep it separate-as trust property, and return it as such. As was said in the* case of Nance v. Nance, 1 S. C. 209, “ the failure to report the-security is not in itself conclusive; it is only a circumstance to be considered among others.”
This court concurs with the Circuit judge. The decree is-affirmed and the appeal dismissed.
Concurrence Opinion
As I cannot concur in so much of the-opinion of the majority of the court as exempts the estate of Phillips from liability for the money received by him as trustee for Mrs. Bose B. Quinn, deposited with the Kirkpatricks, and subsequently lost by their bankrupty, I propose to state, very briefly, the ground of my dissent.
It appears from the return of Phillips that much the larger part of this money was received by him in January, 1860, long-before the war between the states commenced, and that the-balance of it was received by him in February, 1861, several months before the actual commencement of hostilities. As-trustee, it was was his duty to seek a proper investment for the fund as soon as practicable; and while he might have been justified in depositing this money for safe keeping where he was-
As I concur fully upon the other points considered in the opinion of this court it is unnecessary for me to say anything as-to them.
Appeal dismissed.