Pollard v. Cleaveland

43 Ala. 102 | Ala. | 1869

PECK, O. J.

The real question, in this case, is, whether parties who have traded with and given credit to the trustee of a married woman’s separate estate, for and on account of said estate, can, in the first instance, go into chancery to have their debts paid out of the estate of the cestius que trust, in the hands either of the trustee or cestius que trust.

This question is substantially answered in the negative, in the case of Jones v. Dawson et al., 19 Ala. 672. The principles and rule established in that case, we think, reasonable and necessary for the safety and protection of trust estates. That case is well sustained by the authorities cited by the learned judge, in the opinion of the court delivered by him. Among other reasons there given for that decision, is the one, that to permit the creditors to institute such a proceeding, would be to subject the trust estate to the costs and expenses of as many suits and accountings as there might be creditors, to the great injury, and perhaps ruin of the estate; that the true rule is, to require the several creditors to seek the payment of their debts against the trustee, in the first instance, on his personal liability to them, and when he has paid the debts, then his remedy for the debts so paid, would be against the trust estate, which would require but one suit and one accounting. We do not deny that there may be exceptional cases that will permit the creditors to proceed at once against the trust estate; the insolvency of the trustee, with other circumstances, might perhaps form such a case. Each case, however, must depend upon its own circumstances; no fixed, certain rule can be laid down that will be applicable to all such cases.

We discover nothing in this case that should make it an exception to the general rule. There is a peculiarity in this case; it may be called an anomaly in cases of this sort, or any other. It is this : The appellants, complainants below, are a company, consisting of several members, the trustee of the appellee’s separate estate, being one of said company, and is, for that reason, made both a complainant and a defendant; a complainant, in his character as creditor, and defendant, in his character as trustee. His interest as creditor is in direct antagonism to his interest and duties as trustee. In one character he is interested in prosecuting a claim by suit, either just or unjust, against the estate ; in his character as trustee, his interest, or, at least, his duty is to defend the trust estate, and see that it receives no injury or detriment. This is a circumstance that strongly commends the justice and propriety of said rule, and a good reason why this case ought not to be considered or held to be an exception to the general rule.

We have carefully examined the cases referred to on this question by the counsel of the appellants, and do not think any of them, properly understood, either shake or weaken the authority of the case of Jones v. Dawson et al., supra.

Note by Reporter. — At a subsequent day of the term, the following response was made to appellants’ petition for a re-hearing.

The chancellor, holding to the principles settled in that case, sustained a demurrer to the appellants’ bill of complaint, and dismissed the same.

We approve of the decision of the chancellor, and affirm his decree.

Let the decree of the court below be affirmed, at the costs of the appellants.

PECK, O. J.

I have carefully examined the petition for a rehearing, and the authorities referred to, but they fail to satisfy me that the opinion is wrong. I am fully persuaded it is right. The application for a rehearing is denied.