12 N.J. Eq. 289 | N.J. | 1857
The bill was filed, on behalf of an Infant complainant, to compel the defendants, as executors of the will of John Holcomb, deceased, and as trus
It does appear to me that no one with a just appreciation of the duties which rest upon a trustee, and particularly when the object of the trust is an infant of tender years, as in this case, can look through these pleadings and evidence without arriving at the conclusion that J ohn and Alexander Coryell should he compelled to give some security for the faithful disposal of the trust funds which the testator confided to them.
The first step they took in the discharge of their trust presents them very unfavorably to the consideration of the court. After proving the will before the ordinary, they filed in the office of the Prerogative Court an inventory and appraisement of the personal estate and effects of their testator, amounting to the sum of $85,837.76. Their inventory states merely, in the gross, the value of the personal goods and chattels, and also the amount, in gross, of the testator’s bonds, mortgages, books of account, and other securities, without specifying a single security, by whom given, or its amount and value.
It is so brief that I may as well give it as it appears on the file in the office.
Purse and contents, - $5.24
Horses, sheep, and cattle, - 599.00
Hay, grain, and fodder, - .929.00
Household and kitchen furniture and utensils, .......300.37
Bonds, notes, and books of account, - 84,004.15
$85,837.76
Such an inventory might have been filed through ignorance. But these defendants have deprived themselves of the benefit of .such a consideration. The complainant filed
It appears to me that when a trustee has neglected to account in the proper courts, as required by the statutes) and when called upon to account, refuses and evades doing so, until, by the authority of the court, he is compelled — -and that when the account is furnished, not voluntarily, but by force of law, it turns out that the trustee himself is the principal debtor of the estate, and for which indebtedness the estate has little or no security, the conduct of the trustee is sufficient, of itself, to justify the court in compelling the trustee to secure the trust fund. It is vain for the defendant to say, in reply, that the debts due from the Coryells to the testator remain in the same shape, and upon the same evidence of the debts, as the testator left them. The defendants show that the testator was an imbecile old man, and had been for years prior to his death incapable of taking proper care of his property.
The peculiar position which John Coryell occupies before the court is a reason for the court’s interposition on behalf of the infant. John Coryell admits that, at the death of the testator, there were evidences of debt against him amounting to the sum of §34,000 and upwards. As a set-off, he brings in a bill for his services as the agent of testator, and for attending him during his last illness, of §11,800, and for purchase money for property of his own, which he has conveyed to the executors since the testator’s death, of some §21,500. After a full examination, it has been determined that all the set-off John Coryell was entitled to for services was §1200, and at the time of the death of the testator, after allotting all just set-off's*
The appeal was argued by
I might give other reasons which induce me to order security to be given. If the views heretofore expressed by the court upon the exceptions taken to the master’s report are correct, and if any reliance is to be placed upon the report of the master, then most assuredly this security should be required, on the ground that it is necessary for the safety of the trust fund. If that fund is in danger this court is hound to protect it for the infant, when called upon to do so. Believing, as I do, that the fund is in danger, I am determined, if any of it should finally be lost, it shall not be on account of any fault of mine in refusing to the complainant all the protection of the law which is in my power to give.
As to Asher Beading, I should not order him to give security; but as he has expressed his willingness and desire to do so, I shall make the order general to all of the executors.
The opinion of the court was delivered by
A bill was filed in the Court of Chancery, by the guardian of an infant legatee, under the will of John Holcomb, to have the rights of the legatee under the will declared and secured. The bill prays that a specific inventory and appraisement of the estate may be fitied, that an account may be taken, and the amount due complainant secured by the order of the court, and
It appears, among other things, that the testator’s personal estate amounted to $85,837; that $35,600 of that amount was due from two of the executors; that no specific inventory of the estate had been filed]; that no account had been rendered; that no interest had been paid on the indebtedness of the executors; that no investment of the trust funds had been made, pursuant to the directions of the will, in productive real estate; that several parcels of real estate had been conveyed, by individual executors to the estate, at prices greatly beyond its real value, in violation of their duty as trustees, and that a claim for services against the estate, to an amount exceeding $10,000, was set up by one of the executors, which was pronounced by the court to be unfounded, and which was disallowed. These are some of the facts which are ascertained by the report of the master and by the evidence in the case, and which cannot, at this stage of the proceeding, be called in question.
It was thereupon ordered that the executors give security for the amount of the trust funds in their hands, the final decree in the cause not yet having been made, and the case standing on the equity reserved. From this interlocutory decree two. of the executors have appealed. The power of the Chancellor to make the order, and the propriety of making it, under the facts and circumstances disclosed in this case, are both called in - question.
The general principles which have been propounded and advocated by the appellants’ counsel are—that neither
The grounds on which the Chancellor based the order for security is clearly stated in his opinion, as follows: “ It appears to me that when a trustee has neglected to account in the proper court, as required by the statute, and when called'on to account, refuses and avoids doing so, until by the authority of the court he is compelled, and that when the account is furnished, not voluntarily, but by force of law, it turns out that the trustee himself is the principal debtor of the estate, and for which indebtedness the estate has little or no security, the conduct of the trustee is sufficient, of itself, to justify the court in compelling the trustee to secure the trust fund.” Having stated the large amount due from two of the executors to the estate, the failure of the executors to invest the trust funds, the untrue denial of there being funds in their hands for that purpose, the large and unfounded claim s'et up by one of the executors for personal services, and the conveyance of real estate by the executors to the
The material facts in the ease, so far as they relate to the conduct of the executors and the management of the estate, had been fully ascertained in the progress of the cause. These facts were no longer matters of controversy. The only inquiry is, did they justify the court in ordering the executors to give security for the amount of the trust funds in their hands ?
It is a well settled rule in equity, that if the acts or omissions of the trustee be such as to endanger the trust property, or to show a want of honesty or a want of a proper capacity to execute the duties, or a want of reasonable fidelity, equity will remove the trustee. 2 Story’s JEq. § 128-9.
The power of removal necessarily involves the power and the right to require security for the trust funds. Conceding, then, to the counsel of the appellants all the legal principles for which they have so earnestly contended, and resting alone on this simple rule of equity, which is neither questioned nor denied, can it be affirmed that the order of the Chancellor is erroneous ? Is it not perfectly safe to affirm, in view of the ascertained facts in the cause, that the conduct of the trustees has been such as to endanger the trust property, and to show a want of reasonable fidelity in the execution of the trust?
Upon this point the court entertain no doubt. And believing that the trust fund is in danger, we are bound to afford to the complainant all the protection which it is in the power of the court to give.
The order appealed from should be affirmed with costs, to be paid by the appellants, and not out of the estate.
For affirmance — Chief Justice, Judges Arrowsmith, Haines, Swain, Ogden, Potts, Rislet, Rverson, Valentine, Vredenburgh, "Wood.
For reversal — Rone.