10 S.C. 440 | S.C. | 1879
Per curiam,
We concur fully in the decision of the Circuit Judge, and, for the very satisfactory reasons therein given, the judgment of the Circuit Court is affirmed.
This case came on to be heard before me on exceptions to the report of J. F. J. Caldwell, Esq., Referee, (to whom' were referred for a hearing all the issues of law and fact,) filed by defendant’s attorneys, upon various grounds stated therein. The defendant, Dial, was the guardian of the plaintiff, Mary. In 1866 she was the wife, of one John H. Little, and joined her then husband in a petition to the Court of Equity for the appointment of a trustee to recover her estate and for a settlement of the same upon terms that do not distinctly appear in the papers. Pending this petition, after a decree for a settlement, but before the appointment of a trustee, the same parties filed a bill in the same Court against the defendant, Dial, reciting the foregoing proceedings and praying that he account as guardian and pay over the funds in his hands as such to such trustee as should be appointed, or, if none, then to pay the same into Court. This bill was filed March 22,1867. In June, 1867, the defendant filed an answer thereto, wherein, among other matters, it is stated that in the Fall of 1863 (the plaintiff, Mary, being then the wife of said Little, with whom she eloped in 1862; being then short of seventeen years of age,) application was made to defendant for a settlement with his said ward for her estate in his hands; that he agreed to settle, and made arrangements with money and a statement of his accounts accordingly, and, being thus prepared, waited until January following to make the settlement, and then was informed that nothing but South Carolina bills would be received in such settlement; whereupon, it being impossible to procure such bills, defendant, under advice, invested the funds of his said ward, or so much as she would be entitled to on settlement, in seven-thirty Confederate Treasury notes, to wit, the sum of three thousand seven hundred dollars, ($3,700,) which he reported and returned in his annual accounting to the Commissioner, and still held them, regarding that the best he could do under the' circumstances. On the 20th day of December, 1873, the said suit being then pending and no progress appearing to have been had therein, the said Little entered into an agreement with the defendant to compromise the suit upon the payment to him of sixteen hundred and fifty dollars, ($1,650,) of which two hundred were paid in cash and the remainder to be paid on or, before the 15th day of January, 1874. This agreement was in writing and con-
The answer of defendant, duly filed, admits the guardianship, maturity and marriage as alleged, and claims that he has been released and discharged from said accounting, stating that the interest of the plaintiff in the hands of defendant had been settled, by the order of the Court of Equity, upon the said Mary. Upon the application of herself and John H. Little, her then husband, William H. Glenn, the brother of plaintiff, Mary, was appointed trustee under said order and accepted the appointment, and subsequently John H. Little was substituted in his stead and compromised the said claim of plaintiff, Mary, with her full knowledge and consent, and that of her brother and former trustee, the said William H. Glenn, Setting up the release hereinbefore described. The exceptions to the report mainly complain that the Referee did not allow full force and effect to the release as a discharge of the defendant. It was rejected by the Referee on several grounds:
1. Because it was not shown that the seal appended.to the instrument was upon it when it was signed. This is a question of fact, which, it is urged by plaintiffs’ counsel, this Court cannot review, and in support of that proposition several cases are cited, which, however, only hold that the Supreme Court of the State is not a Court of appeals in cases at law, but assumes jurisdiction only for the correction of errors of law in cases of that character. It is
The testimony offered to show' the trusteeship of Little was as follows:
(a) Record of an action entitled Mary V. Little, as administra-trix of John H. Little, deceased, against R. H. Hudgens, commenced 20th December, 1875, on a note payable to John H. Little, trustee, secured by mortgage of certain lands stated in the complaint to have been the consideration of the note, “which was money due the said John H. Little, trustee of Mary Y. Little, for the purchase of the above described mortgaged property.” The complaint prays, among other things, that “ whatever amount is collected on the said sealed note be ordered to be paid over to whatever trustee may be appointed by the Court for the said Mary V. Little in the place of the deceased trustee, the said John H. Little.”
(IP) Defendant also introduced a certified copy of an account on file in'the office of the Judge of Probate of Laurens County of a “settlement by W. H. Glenn, trustee of the estate of Mary Y.
(c) Also an office copy from the Court of Common Pleas of a petition on file in the Clerk’s office, wherein these plaintiffs recite that an order had been heretofore made by the Court of Equity creating a trust over the property of Mary V., the plaintiff, appointing all her estate derived from her grandfather and through her guardian, Allen Dial, who held her funds derived from other sources, to her sole and separate use, and ordering that the marital rights of her then husband, or any future husband, should not attach or be liable to any debts that they might contract.' That Ludy H. Little was appointed the trustee, who never gave bonds. H. H. Glenn was then appointed the trustee; was afterwards removed, and John H. Little appointed, &e. “That the said estate now consists of a tract of land in Laurens County, now in possession of R. H. Hudgens, which was inherited from the grandfather of your petitioner, Mary Y. Pool, and chose in action whieh will probably realize five hundred dollars.” The petition prayed the appointment of Albert Pool, the plaintiff here, a trustee of the fund. An order was therefore made referring it to M. E. Babb, the Clerk of the Court, “to ascertain the truth of the facts stated in the petition, and report a suitable person to be appointed trustee,” &c. February 12th, 1877, the Referee reported that he finds the statements in the petition true, and that Albert Pool is a suitable person to be appointed trustee, &c. Thereupon an order of Court was made appointing said Pool trustee for said Mary.
Here are solemn instruments containing admissions of the plaintiffs that Little was the trustee of the separate estate of the plaintiff, Mary; an official act of the Judge of Probate, the officer to whom the trustee accounted, recognizing the turning over of the trust estate by Glenn, the former trustee, to Little as his successor. If secondary evidence is to be considered at all, it is difficult to see how it could be doubted that this was sufficient in the present action to establish the fact that Little was the trustee. It is entirely satisfactory to my mind, and I conclude, therefore, that John H. Little was the trustee of the plaintiff Mary, at the time when he undertook to make the compromise in question. The only cir
(d) Another ground upon which the Referee rejects the release is that if the said John H. Little was a trustee, he had no right to compromise the suit. It may be conceded that a trustee of this character possesses no such right unless authorized by the instrument creating the trust. Ordinarily, no doubt, it is the duty of the trustee, in a proper place, to apply to the Court for authority to make such a compromise; and in every case in which he fails to do so and acts without authority he takes the risk upon himself of satisfying the Court that he acted, under the circumstances, for the best interests of the trust estate. Where he does so satisfy the Court the compromise will be sustained.—Bacot vs. Heyward, 5 S. C., 445; Lewin on Trusts, 417.
Upon looking into the pleadings of the case compromised with reference to such matters affecting the question growing out of the condition of the country as the Court will take notice of, I entertain no doubt that the Court, if appealed to, would have sanctioned the compromise made. If the statements made in the answer to the bill of Little and wife were true, then there was imminent danger of the loss of the entire claim against defendant. There is no charge of bad faith in the transaction; the circumstances tend, to show'knowledge of the settlement on the part of the cestui que trust and the receipt of a portion of the fund arising from the same; it does not appear that she made any objection, and in the proceedings whereby she sought the appointment of her present husband a trustee she makes no allusion to this claim against the defendant, but declares that the trust estate now consists of a tract of land and “ choses in action that will probably realize five hundred dollars,” which is an implied admission and recognition of this settlement. Under these circumstances the release must be sustained.