Forbes v. Forbes, 5 Gill 29

Forbes v. Forbes

5 Gill 29 | Md. | 1847

Aroher, C. J.,

delivered the opinion of this court.

We do not consider it necessary to enquire into the question, whether the release executed by the complainant before he attained age was void or voidable. The release now in controversy, was executed after the complainant attained age, and the enquiry is whether the release executed at such a time, and under the circumstances, was void. No doubt a release executed by a ward or cestui que trust, shortly after he attains age, without the necessary accounts or information from which a judgment may be formed of the condition of the estate would not meet with the favor of a court of equity. The enquiry will, therefore be, whether the necessary information was imparted to the complainant to enable him or his advisers to form a judgment of the condition of the estate?

The determination of this question will render it necessary to examine the circumstances connected with the release above adverted to. The conduct and acts of the parties anterior to the release, though occurring during the minority of the complainant, are connected with the release, and form its basis. If at the time of the first release, the necessary information was imparted, the examination of friends and advisers as to the state and condition of the trust fund was given, these must be considered the operating causes for the release at the time of its execution.

There would under such circumstances, be no room for the imputation of undue influence, when the party must be supposed to act with knowledge.

The complainant arrived at age on the 27th May, 1831. The deed of release in question was executed on the 8th June, 1831.

*40By the deed of settlement made by Elisabeth Bond, the grandmother of the complainant, under which he claims, John Forbes and Thomas Marshall were made the grantees and trustees, and after the death of John Forbes, Thomas Marshall the surviving trustee, on the 9lh of March, 1820, conveyed the property then in trust to George Forbes, the present trustee, subject to all the trusts contained in the original deed from Elizabeth Bond; and in the month of January, 1821, George Forbes filed a bill in Charles county court, against all the cestui que trusts, praying for a settlement of the trust estate under the direction of that court, as a court of equity. This cause was subsequently removed to the Court of Chancery, and while it was there pending, propositions of compromise were made, and that the parties might be fully informed of their respective rights, the books of the trust were subjected to the examination of the respective parties, and the accounts were examined by CoVn Ashton, who was solicitor for the defendants in that suit, and by Mr. Webster, who was one of the cestui que trusts. A statement was also made of the condition of the accounts by a skilful accountant, Richard Dorsey, at the request of Judge Clement Dorsey, (who was then the counsel of the present defendant, George Forbes,) which was exhibited to the parties; and upon that examination, CoVn Ashton the solicitor advised the compromise, which was effected with the complainant, and Beale the brother-in-law of the complainant, who was himself a lawyer, either from his own examination, or acting by the advice of his solicitor, also accepted the compromise and executed a like release. Every facility was furnished by the defendant for the examination of the accounts, and we have no evidence of any books or accounts being kept back. They were examined by the parties or some of them, and by the solicitors of the parlies fully able and competent to determine what was due from the trustees to the cestui que trusts. This examination gave rise to the compromise, and release made on the 30th of April, 1830, and forms the basis of the release executed on the 8th of June, 1831, after the complainant arrived at age. It is immaterial whether the com*41plainant examined the books and accounts of the trust, or not. It is sufficient that they were examined by persons competent to make the examination for him.

The fair presumption, we think, from the facts of the case, is, that all proper and necessary information was imparted to the complainant, and the advisers and solicitor of the complainant. The answer of George Forbes avers this fact, and it is in proof, that the books of the trust estate were exhibited and examined by skilful and competent men who advised the compromise. The parties knew the trust estate which came to the hands of the defendant, and of course knew his accountability for the rents and profits; and it is a fair presumption, that these rents and profits were taken into the estimate in the adjustment of the compromise. As to the administration accounts of George Forbes, passed on the estate of his mother, Elizabeth Bond, they were matters of public record, and for aught we know, existing only there, and ought to be presumed under the circumstances of this case to have been known to the parties examining the accounts of the trust fund. With regard to these or any other matter connected with the accounts of the trust, there is no proof whatever of concealment, and to hold the defendant after the lapse of ten years, when the more important witnesses of all these transactions may be dead, to actual proof of detailed information of what the records and accounts displayed, would we think, be to exact more than ought in reason, or justice to be demanded of a trustee, especially in a case where there is proof of frankness, and a desire to furnish information necessary to a proper adjustment of the estate.

Independent of the above considerations, there have been several recognitions of this release as a valid release, made by the complainant at different times. In the complainant’s deed to Ignatius T. Gardner, bearing date on the 20th July, 1831, the release is expressly referred to, and the lands constituting in part the consideration for the release are for a valuable consideration bargained and sold to Gardner.—On the 7th of February, 1834, nearly three years after the release, in a re*42ceipt given by the complainant to George Forbes, he recognizes the settlement as a valid settlement.

Again, the complainant was made one of the parties to the bill of George Forbes, filed for a settlement of the trust estate. This bill was answered, by James Sothoron for himself, and as guardian for the defendant. And although the record does not show that an order was passed, appointing said Sothoron guardian ad litem, the answer was not objected to as an answer for the infants, but would seem from the proceedings to have been taken as a valid answer, and the cause proceeded as if the parties were all regularly parties in court, and had duly answered, commission issued to take testimony, affidavits were taken, orders passed to bring in the books of the trust estate and the books of James Sothoron, and references were made to the auditor to state an account. It is manifest that the Chancellor, and the county court from which the cause was removed, treated the complainant as a party, and as having duly answered the bill. The complainant thus being a party to this bill, on the 1st January, 1833, by his solicitor entered the bill dismissed by agreement. This agreement for the dismissal of a bill for the settlement of the trust, was made more than a year after the release in question, and it may be presumed, that so far as the present complainant, was a party to that agreement, the dismissal was founded on his release and the consideration which passed to him for that release. If the complainant is to be considered as a party to this proceeding, and if the above presumption is just, this agreement was another unequivocal recognition of the release in question.

It is obvious that the great difficulty in the way of the complainant, was the large account which stood on the trust books against the father of the complainant, which would occasion a proportional diminution of the sum to be paid to the complainant for his distributive share. It could not be pretended that the parties were ignorant of George Forbes'1 liability for the rents and profits of such of the estate as was in his possession, or the amount thereof, or that they were ignorant of the administration of the estate of Elizabeth Bond; accordingly, *43in this proceeding, the whole condition of the trust estate was developed. The rents and profits of the lands were brought into view; the administrative accounts of George Forbes constituted a part of the record. It is therefore clear, that if the complainant is to be considered a party to this proceeding, (and we think he is) knowledge is to be imputed to him of every thing he was entitled to know, and proper to be known, for a right decision in regard to a confirmation of the release, and thus being in possession of all proper and necessary information at the time of the dismissal of the bill, the complainant’s act in thus dismissing the bill by agreement, and in his signature to the receipt above referred to, dated 7th February, 1834, are such recognitions of the act in question, as would amount to a confirmation of the release, considering it merely as a voidable release.

The great and leading object of the bill was to render the Marshalls liable for the alleged waste of the trust estate, by John Forbes, and for the alleged fraudulent alteration of the accounts. In accordance with this, is the complainant’s declaration as proven to have been made to Somerville, that he did not believe George Forbes had any portion of his property, but that the Marshalls had, and that he was determined to make them pay for it. So far as the defendant was concerned, it is obvious from this that the complainant found no fault with the release he had executed.

We do not consider that any objection could be taken to the release, upon the ground that the compromise was founded on the appointment of Mrs. Bond. The court’s decision with regard to this appointment, was known to the parties, and if they thought proper to waive any benefit which might accrue to any of them under this decision, it was surely competent for them to do so. That it was her wish and intention that the property should pass to to her representatives in pursuance of this appointment is apparent, and this consideration would seem to make such an arrangement entirely proper, and if the complainant sanctioned it when he came of age, the release ought not to be affected by that fact.

*44The validity of this release on the ground of fraud, we think cannot be impeached. The alleged fraud consists in concealment, in alterations and erasures of the accounts, and in the alteration of the covers and labels on the books of the trust, whereby an examination of the books was rendered more difficult.

As to the charge of concealment, we consider it wholly unsupported by the evidence.

It is alleged secondly, as a ground of fraud, that a large item in the account of James Forbes, the father of the complainant, in the books of the trust estate kept by one of the original trustees, was erased, whereby his account was materially changed to the prejudice of James Forbes, and the complainant claiming under him. The answer of the defendant denies such erasure, and although it is sworn to by Wheatly, the whole proof in the cause induces us to believe that the erasure complained of did not exist. Examinations of the accounts of this trust estate, embracing the account of James Forbes, were made by skilful accountants, and by persons interested in detecting the erasure, if one existed, yet no such erasure was discovered, and Judge Marshall swears, that he saw no such erasure, and he could not perceive how such an erasure could have been made without bearing traces which would lead to detection, as the accounts were objects of close examination. The books were in Washington, taken thither expressly for the purpose of examination, preparatory to a compromise, and were examined by Col. Ashton, the counsel of the complainant and of his sister and brother-in-law, by Mr. Webster, the husband of Miss Sothoron, one of the persons entitled under the trust, and were particularly examined at the instance of Judge Clement Dorsey, by Richard Dorsey, an accountant; and were brought into court, where they remained for the inspection and scrutiny of all the parties interested, yet no erasure was at any time discovered. It is inconceivable that an erasure of the character charged, could have been committed, and under all these circumstances of vigilant scrutiny have avoided detection. It is equally extraordinary that the *45witness testifying to these erasures should have been from time to time in communication with the parties, and having lull knowledge that a compromise of the claims of the respective parties was about being made, should have withheld information from them of a fact so important to the just distribution of the trust estate. During any of the examinations by the books, had by any of the parties or by the witnesses, no complaint of this kind has been made, and we consider the charge as disproved by the evidence.

We are therefore of opinion that the release of the 8th of June, 1831, is valid and binding on the complainant, and that, he is not entitled to a decree for an account.

DECREE REVERSED AND BILE DISMISSED WITH COSTS.