Lowe v. Morris

13 Ga. 165 | Ga. | 1853

By the Court.

Warner, J.

delivering the opinion.

[1.] The first question to be settled in this case is, what shall be the proper construction of the deed of marriage settlement entered into between Morris and his wife, prior to their marriage. The deed of settlement expressly declares, that Morris shall have the use and benefit of the sixteen slaves mentioned in the deed, without account, for and during his natural life. By the provisions of this deed of marriage settlement, the fee simple title to the negroes was vested, in Mrs. Morris, subject to the life estate of her husband, Richard Morris, ryho was to have the use and benefit thereof, during his natural life, without account. The life estate of Richard Morris in this property was ■ therefore liable for the payment of his debts.

This bill was filed by Morris and his wife, against the trustee of Mrs. Morris, calling, upon him to account for the trust property which came into his hands as her trustee. The answer of the defendant is quite full, and denies the equitable claims of the complainants; shews that the trust property was greatly embarrassed by the debts of Morris, and that some of it had been sold by his judgment creditors, in satisfaction of his debts; that-suits had to be instituted for the recovery of the property, and much time, trouble, and money, was necessarily expended by the trustee in protecting the trust property, for the benefit of his cestui que trust.

On the trial, the trustee offered to prove, by competent evidence, offered for that purpose, what his time and services were worth in the management and protection of the trust property, which evidence the Court rejected.

[2.] That trustees have an inherent right to be reimbursed all expenses properly incurred, in the execution of the trust devolved upon them, is well settled. Hill on Trustees, 570-1. But that is not the precise question in this case: the precise question here is, whether a trustee is, entitled to compensation for Ms time and services, in the management of the trust property, over and above that allowed by the 11th section of the Statute of 1764. The general doctrine upon this subject, maintained in the Courts of Great Britain, as shewn by Chancellor Kent, in Manning vs. Manning, (1 John Ch. Rep. 527;) and in Green vs. Winter, (Ib. 26,) is, that the trustee is not entitled to compensation for his time, pains, and trouble, in the execution of his trust; though, in Green vs. Winter, it was held, that the trustee was entitled to receive an allowance per diem for his time and expenses of travel.

Mr. Justice Story, in a note to his Commentaries on Equity, refers to the case of Manning vs. Manning, and declares, that “ he has not been able clearly to see, or so strongly to approve the policy of the rule” stated in that case ; for, says he, “No one can reasonably expect any trustee to devote his time or services, to a watchful care of the interests of others, when there is no remuneration for his services, and there must often be a positive loss to himself, in withdrawing from his own concerns, some of his own valuable time.” 2 Story’s Com. on Equity, 512, note to §1268. The rule, as established in Great Britain, and which Chancellor Kent considered authoritatively binding upon him, has been altered in this State, by the 12th section of the Act of 1764. Prince, 225. This Act contemplates compensation to be made to trustees for theh* extraordinary care, trouble, and pains, in the management of trust estates; therefore, the evidence offered, ought, in our judgment, to have been admitted.

[3.] The defendant set up in his answer, that he had paid off sundry demands against Richard Morris, at the request of Mrs. Morris, his cestui que trust, which demands were specially stated, and set forth in the answer. The defendant offered said demands in evidence to the Jury, for the purpose of shewing payment thereof by him, he having first proved by Samuel J. Ray, that Mrs. Morris told the defendant, she wanted him to pay off all the existing debts of Richard Morris, (who had a life estate in the property) on account of the trouble and vexation they gave to the trust property, which evidence so offered, was rejected by the Court. Morris being one of the complainants, and having a life estate in the property, which was subject to the payment of his debts, it was competent for the defendant, as against Morris, who was seeking to make him account for the hire of the negroes during his lifetime, to shew, that he had paid off his debts to the amount of such hire, or to whatever extent he had in fact paid off the same. The evidence was competent as against Mrs. Morris, for the reason, she requested the trustee to pay off the debts of Morris, in order to protect the trust property.

We do not intend to say, that the testimony offered, is per se, evidence of payment by the trustee, without further proof of payment thereof by him; but we intend to hold, that the defendant had the right to introduce before the Jury, the evidence of Morris’ indebtedness, and then to prove payment thereof, if he could do so; and to the extent he proves such payment, will he be entitled to credit therefor.

Although we do not find it necessary to express any opinion in regard to the verdict being contrary to law and the evidence, yet, we think the weight of the evidence, as shewn by this record, was in favor of the defendant.

Let the judgment of the Court below be reversed.