7 Fla. 301 | Fla. | 1857
delivered the opinion of the Court.
This is a suit instituted by the surviving executor of Robert McITardy, who died in the city of St. Augustine in the year 1822, against the creditors, devisees of the estate, and others, asking advice as to the administration and disposition of a sum of money on hand — to have the debts paid — a distribution amongst those entitled, and for a discharge.
The principal question is presented by the claim of two parties, children of the testator by different mothers, to a portion of ten thousand dollars obtained from the Government of the Hnited States for injuries to and losses sustained by him in his planting interests by the invasion of the Province of East Florida, then under the dominion of Spain, in the years 1811, 1812 and 1813.
The claim of one of these, John B. MeHardy, will be best understood by the statement contained in the answer filed by him. “During the years 1811, 1812, 1818, when the said losses accrued, his fathei’, Robert MeHardy, was a Spanish subject; that prior to that time, to-wit: in the year 1798, he had intermarried with Mrs. Mary McFIardy, a resident of Nassau, New Providence; that prior to said marriage, a marriage settlement or contract was made by said MeHardy, by which the property was settled upon her as her separate property, or[that subsequently her father, John Bunch, settled the negroes with which the said
Aright is first asserted to a la/rgepart of the proceeds paid for losses, being the increase and proceeds of the labor of the negroes belonging to defendant in right and by de
So that if this claim were now sustained, an enquiry •would be necessary to ascertain as well the losses as the gains during this period. This has not been suggested and with some prudence, as the record shows but very few gains and a large indebtedness, the increase of the negroes •settled upon Mrs. McHardy, from nine to twenty-five, sold to Anderson in 1828, constituting perhaps the only evidence of gains, if they are to be regarded as a part of the joint property.
A claim asking all of the common property, the gains .and profits to the exclusion of the losses and in disregard ..of -the joint responsibilty of a joint concern, assorted
The main reliance however is upon the other position, that J. B. McHardy “is entitled to a large part of the proceeds, being the increase of the labor of the negroes belonging to him in right and by descent from his mother.”
At the time of these losses in 1811, ’12 and ’13, J. B. McHardy was a minor, probably of the age of twelve or thirteen years, so that his rights in the money claimed will depend on the character of his interest in the property under the Spanish laws then in force in the province of Florida. Was a child there entitled to the possession of property during his minority — to its fruits — to the wages of his slaves, or could he at the expiration of his minority hold his father, if in possession, accountable for the profits? This is the question. No law has been cited in support of any such proposition; on the contrary, in the very able brief furnished by the counsel of the creditors, the opposite doctrine is maintained and demonstrated. “ Fathers are bound (we quote but one authority from it,) to administer, to take care of and defend, as well judicially as otherwise} the adventitious property of their children, enjoying the usufruct of it and the dominion of their profectitious property, although the peculium or stock, that is the property which the sons acquire in the army or in the service of the King at Court, belongs in entire dominion to them.” 1 White’s Eecop., 66.
The law of Spain then giving to the father the dominion over the slaves and their wages, there is no just claim on the part of his son,_J. B. McHardy, against his estate on this account.
It is said, however, that the labor of these slaves follows
In every view we have been able to take ofthe case, the claim of John B. McHardy to these gains, to the wages and labor of these slaves, is not sustainable in law or equity, in conscience or right, and the Court below did right in rejecting it. In this respect the decree of the Court below will be affirmed.
The reasons already stated, for the most part, are fatal to the claim of the children of Caroline McHardy, second wife of the testator, to whom a decree is rendered for $3483.41. For other reasons it should be rejected. A claim is scarcely asserted by these parties, either in the answer or in the argument of their counsel, and very properly, for there is no testimony in the record to support it. The proof is, that their mother was not married until the latter part of the year 1813 or 1815, and that her negroes were not taken to Florida until 1815. The decree of the Circuit Judge in their favor will be reversed and set aside'
The important interests thus disposed of are raised in the
The mode of presenting claims for adjudication is founded in a high degree of wisdom, connected with the right and proper disposition of the subject, and should be adhered to by the Courts. There is propriety as well as- , safety in not deserting antiguas vías, and a departure is ever attended with perplexity to the Court in the decision of the case, and to the parties in the ascertainment of their rights.
The claims of the creditors are the next subject of consideration. To determine these it is necessary to refer to two instruments of writing executed by the testator, McHardy, a few days before his death: the one an assignment or deed of trust, the other his last will and testament.
On the first of December, 1822, Robert McHardy assigned and transferred to John Rodman, of St. Augustine, all his property, real and personal, “ in trust for payment of all his debts, with power to sell lands,' goods, etc., and from the proceeds to pay what sum of money he may owe to Mrs. Rontane for board and lodging, next a debt due John Rodman and John Drysdale, next whatever sum he-
On the same 1st of December, 1822, he made his last will and testament, admitted to probate fourteen days after, whereby he directed “his executors, or a majority of them, or the survivor, to sell and dispose of his goods and chattels, lands, etc., and all other estate, real and pexsonal, and to pay his just debts,” etc.
In tbe fourth article he expressly declares his “last will and testament to be subject to a deed of assignment of his whole estate, real and personal, made and executed by me this day to John Rodman, one of my executors herein named, in trust for the purposes mentioned in said deed of assignment, hereby ratifying and confirming said deed of assignment in all its parts.”
Although tbe assignment might be objectionable, about which it is not necessary to express an opinion, this interpolation of its leading provision in the will adopts it and makes it a part of it, as if it were fully and entirely written out in the will. “ If a testator in his will refers expressly to any paper already written and has so described it that there can be no doubt of the identity, that paper, whether executed or not, makes part of the will, and such reference is the same as if he had incorporated it.” Habergham vs. Yincent, 2 Yesey, 228.
“ In reference to wills the rule is, that the invalidity of any trust created by the will does not destroy trusts and interests otherwise valid.” 5 Paige, 318.
The feature objected to in the assignment, that of p>roviding for support of the testator and his family, is not continued in the will, and even if extended there would, according to the authority cited, not have affected the other
That the debts specified and embraced by the provisions of the will are not to he presumed to he jiaid through the lapse of time, we think very clear. Such a presumption has not. an application oven remote to a case like the present, where there are large and numerous debts, considerable property yet to bo disposed of, and very few, scarcely any of the debts satisfied, and these latter bearing no proportion to the amount yet due and unpaid. The bill, so far from alleging payment of the debts, admits their existence. That they have -not been paid is from no fault of tbe creditors. The present executor, who qualified as late as 1838, sixteen years after the death of the testator, has been tbe only one to accomplish any thing in tbe administration, as through his exertions the $10,000 have been recovered. The record is almost a blank as to the payment of debts, being filled with judgments recovered by creditors, and revived and renewed again and again, from time to time. Indeed, with the exception alluded to, the administration of the estate remains now-, after the lapse of near forty years, to he commenced. Very clearly, and obviously as far as the creditors are concerned, there has been a breach of trust and a disregard of the injunctions of the will in their behalf. Is this action to he permitted to operate to their prejudice ? Are their rights to be injured by this inattention,.neglect and failure of duty? We think not. The property of the estate belongs either to the cred
“ The creditors, in whose favor a charge on the realty is made, acquire, as before the alteration of the law, the character of cestui que trusts, and in equity they will not be allowed to lose their debts because they do not go to law to enforce payment when they have a trustee to pay them.” Turner & Russ., 309; Bailey vs. Akin, 7 Yesey, 319; Shaw vs. Bower, 1 Kean, 576; Williams Per. Prop., 320.
“The trustee’s neglect shall not prejudice the creditor.” 6 John. Chy., 294 and ’o; Rogers vs. Rogers, 3 Wend., 518.
“ They have been guilty of a breach of trust, and the statute does not apply.” 4 Price, 103, 109.
The effect of a provision of this kind as to schedule debts is, that a purchaser will not be protected against them. “When the trust is for payment of the debts generally, the purchaser is not bound to see to the application of the [purchase money, although he 'has notice of the debts. Por a purchaser cannot be expected to see to the observance of a trust so unlimited and undefined. But if the trust be of such a nature that the purchaser can reasonably be expected to see to the application of the purchase money, as if it be for the payment of legacies, which are scheduled and specified, he is bound to see that the money is applied accordingly.” 10 Barr’s Rep., 267. So
Delay in winding up an estate may be urged to repel presumption. 2 Har. & M., 145, 154; 2 Phil. Ev. Cow. & Hill, 326 — note 307.
The reason of this rule of presumption is perhaps best explained by the remarks of the English Chancellors: “ There are cases where great length of time operates not as a bar but as raising a presumption that a debt has been paid or a right released. Neither of them applies to that of cestui que trust and trustee. It does not, however, follow that relief will be granted after great lapse of time, it being the constant course of courts of equity to discourage stale demands, &c. When there has been a long period during which a party has, under an innocent mistake, misapplied a fund from the laches and neglect of others, and the accounts have become entangled, the Court, under its general discretion, considering the enormous expenses of enquiry, the great hardship of calling upon representatives to refund what families have spent, acting on the notion of its being their property, while giving relief, has been in the habit of fixing a period to the account.” Although the account was of very long standing, two hundred years, they gave a decree and said, can the Court give to parties money they acknowledged not to be theirs ? 1 Jacob, 443.
“ It is true that courts of equity do discourage suits for old stale accounts, and very rightly ; but every case of that kind must be considered on its own circumstances, and ought to be determined by the justice and equity of that particular case arising from those circumstances. It is clear that no presumption of satisfaction arises from this length of time, that is to the plaintiffs, for it is not pretended that anything was paid to them or that their right was in proper time fully disclosed to them.” Pomfret vs. Windsor, 2 Vesey, Sen., 483.
By the very terms of this will the creditors are preferred to these.
Is there merit in the other objection taken, that tbe debts were not presented to the complainant as required by an advertisement made by him after he had qualified ? There is no allegation that they were not presented to the other executors, who had qualified immediately after the death of McIIardy in 1823. In fact they seem to have been so presented. Under such a state of case, we are clearly of opinion tliat a farther presentation was not required. The general rule is that notice to one executor is notice to all. 1 Salk., 313 ; 2 Ld. Eay., 871; 2 Bibb, 330.
The law evidently contemplates but one notice, and one presentation of a claim to the rightful representative.
The creditors then mentioned in and whose cases are embraced by tbe deed of assignment and will executed by Bobert McIIardy, will be paid out of the assets and realty in tbe manner and order in which they are there directed to be paid.
The claim of Edward Sherman, now represented by Whipple Aldrich, his administrator, is perhaps the only one not embraced by the provisions of the will and assignment. Is this demand subject to the objections stated, or to any other statutory bar ? There was a judgment in favor of Sherman at May term, 1824, two years after Mc-IIardy’s death, and another judgment in 1842, the first against Hodman, Orman and Sibley, tbe last against Hod-man, and these effectually dispose of the objections made. A judgment against one executor is good against the es•tatOj and the judgment effectually disposes of the objection for want' of presentation, and there is no other bar.
The decree of the Circuit Court will then be reversed and set aside, so far as it allows the claim of the heirs of Caroline McIIardy and so far as it rejects the claims of the creditors enumerated and stated and embraced by the will, and the claim of Sherman, and in all respects as far as it conflicts with the views of the Court as here expressed as to the creditors to be paid and to the mode and order of their payment, and the cause will be remanded to that Court with directions to proceed to the execution of the trusts of the said assignment and will — that no part of the injunctions of the latter may be disregarded or evaded — to have the debts paid — taking an account by the trustee, and winding up the estate; and the Court will appoint a Master to adjust the accounts, so far as said trust is concerned, the said matter of said trust being exclusively within the jurisdiction of the Court of Equity, and said account to b.e settled upon the rules and principles prevailing in Courts of Chancery. 2 Story’s Eq., 319 ; 1 Story, 556, 509.
The claim for compensation to solicitors, after being paid by the executor on his own responsibility, like that of any other individual, will be passed upon by the Master, and after being approved or rejected by him, his decision will be subject to revision by the Court. An allowance by the Court, such as is made in this case, of $1000 for services in this suit, is not approved, as it disposes of a large amount of the fund in a summary manner, without notice and without a hearing, and without any lieu whatever upon the fund. If a sum be paid by the executor to his counsel for services, it will form ground of charge in his account on final settle