51 W. Va. 569 | W. Va. | 1902
John II. Hall purchased from the estate of Mrs. Ellen Waters a tract of two-hundred and thirty-five acres of land in JefEerson County, under the provisions of the will of said Ellen Waters, at the price fixed by the will, twelve thousand dollars, which will provided a legacy of three thousand dollars to said John H. Hall to be by him held in trust, to pay the interest accruing thereon to John L. Briscoe, the brother of the testator, during his life, and after the death of her said brother the said sum of three thousand dollars was to be paid to Julia Armstead, Bettie Miller and Julia Gallaher each the sum of five hundred dollars, and the residue of said sum to testator’s sisters Juliet B. Miller, Elizabeth C. Hall, and Amelia E. Gallaher, equally to be divided between them share and share alike. To raise the money to pay for the farm the executor of the will borrowed for said Hall from Judge Marshall the sum of seven thousand dollars, to secure which Hall executed a deed of trust on the land; the executor allowed the said Hall to retain the three thousand dollars bequeathed to him as a trust fund by said will, to be held by him in trust for John L. Briscoe and others, and took Hall’s receipt therefor. Ó'n the failure of Hall to pay off this trust deed George Johnson and Charles W. Ross, executors of Ann P. Marshall, and Charles W. Ross, as trustee,- brought their suit •in chancery in tire circuit court of JefEerson County, and filed their bill at April Rules, 1893, convening the creditors of said Hall for the purpose of subjecting said land to the pajnnent of his debts, in which suit said John L. Briscoe, and others, the beneficiaries of the three thousand dollar trust fund were not made parties. These parties on the 14th day of December, 1894, tendered their petition in said cause, setting up their claim for the three thousand dollars and praying that this resulting trust might be fully recognized and established by decree, and that all resulting and consequential relief might be granted, etc., to the filing of said petition the parties plaintiffs and defendants to said suit objected, which objection was sustained and the petition not allowed to be filed. Petitioners appealed from the de-
Frank Beckwith, trustee, filed his answer to said petition setting up the trust deed he represents and showing its recordation, denying all notice of any claim or equity on behalf of petitioners until the filing of their petition and charging laches on part of petitioners in asserting their claims and calling for strict proof of their claim. W. L. Wilson, Edward Tearney and George Baylor, trustees, filed their answer denying that the three thousand dollars is a lien upon the two hundred and thirty-six acres as a resulting trust or otherwise, or that they ever had notice of the facts set out in the petition until the filing thereof; that the farm devised by Mrs. Waters to John Ií. Hall originally coii-tained two hundred and thirty-six acres, but averring that in June, 1884, the said Hall sold off eighty acres of said tract to Thomas H. Bates, and petitioners’ lien, if their theory of .the law be true, would equally attach to said eighty acres in the hands of Thomas H. Bates; that the claim audited in the cause in favor of Ann P. Marshall’s executors has been fully paid and satisfied under the decrees in this cause, two thousand eight hundred and ninety-seven dollars and ninety-three cents under
The following “agreement of facts” is filed in the record: “It is admitted and agreed as facts in this cause that neither IV. L. Wilson, Edgar Tearney or George Baylor, trustee in the deeds of trust from John H. Hall and wife to George Baylor, trustee, nor J. G. Hurst, Frank Beckwith, trustee, nor T. C. Green, trustee, under deed of trust to T. C. Green, trustee, made by John H. Hall and wife, had any actual notice of the facts set out in the petition or amended petition of Eugene Baker sheriff committee of Julia B. Miller, John L. Briscoe and others until the filing of said petition. Daniel B. Lucas, for petitioners, George Baylor, for Wilson, Tearney and self; Frank Beckwith, Hurst, Green, trustee and self and Miller.”
On March 8, 1883, Charles W. Boss wrote from Frederick, Maryland, to Mrs. Amelia P. Gallaher, Waynesboro, Augusta County, Virginia, in reply to a letter of enquiry (apparently) from her in which he gives her a full statement of the transaction, his dealings with Mr. Hall, his writing of the will of Mrs. Waters, how he assisted Hall to raise the money and ho says, “two thousand dollars Mr. Wilson raised for him on the small place lie had and which. Mr. W. received as trustee for Mrs. Asquith and receipted to me as executor for the same,” and continuing says, “there remains three thousand dollars. I
And the court is further of the opinion that the several trustees and beneficiaries whose deeds of trust were executed subsequently to the 1st day of April, 1881, were purchasers severally of the equities of redemption, and do not come under the definition of purchasers for value without notice as defined by the Court of Appeals in its opinion, they never having acquired the legal title, and therefore the subsequent trusts are subordinated as inferior in dignity and priority to the resulting trust of the said petitioners,” -and providing further that the special commissioner collect the last payment of two thousand and seventy-seven dollars and fifty cents with interest from July 31, 1894, from S. S. Dalgarn, the purchaser of the Briscoe tract, and pay the same to J. F. Engle, who was appointed a special receiver .for the purpose, to be held by him for the benefit of the beneficiaries under said resulting trust until the further order of the court. From this decree the defendants, William L. Wilson and Edward Teamcy appealed and say it was error to hold that the sum of three thousand dollars named in the petition of Eugene Baker and others was superior in dignity and a prior lien to the deeds of trust in favor of William L. Wilson and Edward Tearney audited in commissioner Moore’s report.
The appellees base their claim upon two clauses in the will of 'Ellen M. Waters which read as follows: “I give and' bequeath to my cousin, John Hall, of Jefferson County, State of West Virginia, to him, his heirs and assigns, my farm, situated in Jefferson County, State of West Virginia, which I purchased in the year 1874, with funds belonging to my separate estate, of Edward Tearnejq administrator of Thomas Briscoe, deceased, he pajdng to, my -executor twelve thousand dollars, in five annual payments, bearing -interest from the date of my death, such payments to form part of my estate in the hands of my executor, and to be disposed of as hereinafter provided. But in case my' said cousin, John Hall, refuses to take said farm at the valuation aforesaid, within one month from the probate of my will, 'such refusal to be in writing, signed by him, I then authorize and empower my executor to sell said farm, anti direct and will that the proceeds of sale, together with other parts and
On the 14th of December, 1894, John L. Briscoe and others
It is claimed by counsel for appellees that Hall, in June, 1884, haying sold eighty acres of the Briscoe tract for six thousand dollars, and Boss trustee for Marshall in the deed of trust and having full notice of petitioners’ claim, joined in the conveyance of the eighty acres to the purchaser Bates, as did also Wilson and Baylor, his trustee, thereby releasing their liens upon'the said eighty acres, four thousand dollars of me purchase money being paid on the Marshall claim, that it was equivalent to a sale of the eighty acres by the trustee, and his cestui que trust should" be held responsible for the whole of the six thousand dollars instead of only the four" thousand dollars, which was credited on the Marshall debt. This position is correct only as respects the rights of the petitioners Baker, committee, Gallaher and others, but the Wilson estate has no equity to compel the Marshall estate to account for the two thousand dollars, beihg a part of the proceeds of the sale of the eighty acres of the land to 'Bates as Wilson and his trustee joined in the release, and it does not appear from the record that there was any arrangement or understanding in the execution of the deed and relehse to ‘Bates that the whole proceeds of the eighty acres were to be applied to the Hall debt due Marshall. The Marshall" trust debt and Wilson trust debt made by Hall should be subrogated to the lien or charge of Mrs. Waters created by‘the will, in the order" in point of time in which the trust deeds were executed to "Marshall and Wilson, but "subordinate to the residue of three thousand dollars of the original charge or lien and its interest. Shelden on Sub., s. 19; McClaskey v. O'Brien, 16 W. Va. 791. The money in hand and directed to be collected by the special commissioners should be applied first to the payment of the said legacy of three thousand dollars, with interest," and if any balance remains thereafter it should be paid on the Wilson debt, and then upon the other claims according to their respective priorities. But "if the fund in hand and- so to be collected is insufficient to pay off the said three thousand dol
Affirmed in peart. Reversed in part Remanded.