87 Md. 330 | Md. | 1898
delivered the opinion of the Court,
George Skinner, trading as George Skinner & Co., made a deed of trust for the benefit of his creditors on the 30th day of April, 1896, to Robert Goldsborough Keene. The The Circuit Court No. 2, of Baltimore City, assumed jurisdiction of the trust which was administered under its orders. On the 1st day of February, 1897, the trustee having made his report, an auditor’s account was filed, showing the sum of $2,968.01 in the trustee’s hands for distribution among
The prayer of the petition was for an account of all sums received and paid by said George Skinner, under said agreement, and that such sums as should be found to be due to her, and to her two sons, should be decreed to be claims against the trust estate, and should be admitted to dividend therein. The original agreement was filed with peti
There was no written opinion filed with this order and we are thus not advised of the ground upon which the decision was rested.
During the taking of the testimony Mrs. Turner became satisfied there was nothing remaining due to her under this agreement, and she abandoned any personal claim against the trust estate. It was also admitted that all other sums required by said agreement to be paid, had been fully paid by said Skinner, and the only claim which it is sought to
The proof shows that their father, Trueman Skinner, died in November, 1882, and that these appellants, who were twin children, were his only children, and were born in 1870. It is also shown, without contradiction, that Mrs. Turner, then Mrs. Skinner, after duly qualifying as guardian of these children, received from the Mutual Life Insurance Company of New York, on the 3rd of March, 1883, the sum $9,902.20—the net proceeds of a policy of insurance for $10,000 upon the life of their father—which she deposited in bank to her individual account, together with other sums belonging to her, the whole aggregating $17,818.85 ; and that this whole amount was drawn out by her on two checks, to the order of Skinner & Co.—one dated May 1st, 1883, for $7,500 and one dated November 19th, 1883, for $10,31885. A certified copy of this life policy is in the record, as well as copies of the two checks above, and of the bank account of Mrs. Skinner upon which these checks were drawn. Mrs. Skinner testified and the documentary evidence showed, that the sum of $9,902.20, the proceeds of the life policy, was included in the check for $10,318.85 given to Skinner & Co., November 19th, 1883. She further testified that she gave this check to Skinner & Co. under the advice, and at the request, of ■ George Skinner, to be used in paying the debts of the firm, and that no part of this sum has ever been repaid to her, or to either of her sons. She testifies in conformity with the agreement recited, that at that time, and up to April 21st, 1888, she and George Skinner composed the firm of Skinner & Co.
Louis M. Reardon—a bookkeeper of Skinner & Co. from 1881 to 1896—examining the letter of the Insurance Company, enclosing the draft to Mrs. Skinner as guardian for $9,902.20, and speaking from his own knowledge of the transaction at the time, testified that this check was for the net proceeds of the $10,000 policy upon the life of
George Skinner testified that he executed the agreement of April 21st, 1888, with Isabella S. Turner; that he knew there was a life policy of $10,000 on the life of his brother, Trueman Skinner, for his two sons, and that he kept it in his safe; fhat the net amount thereof, $9,902.20, was paid to Mrs. Isabella S. Turner as guardian; that he got from her the check for $10,318.85 for the purpose of paying it to Thomas H. Gaither, Sr., on a debt due by Trueman Skinner, either upon his note, or note of Skinner & Co.; that he did not recollect whether Skinner & Co. endorsed, or he, individually, but that at that time, he alone composed the firm of Skinner & Co.; that he knew the money belonged to Trueman and William C. Skinner, but that he owed Gaither a good deal, and that he thought he had better pay that money to him and stop the interest; that no part of this $9,902.20 had been paid to Mrs. Turner, or to Trueman or to William C. Skinner; that he used every cent of the $17,818.85 received from Mrs. Skinner by the two checks mentioned to pay Mr. Gaither, and that in addition thereto, the 300 shares of Texas Pacific stock were sold as testified to by Reardon, and the proceeds paid Gaither on his debt. He also testified that Mrs. Turner was never known in the business—that all of it belonged to his brother’s estate and •his creditors, and he surrendered it. These transactions all occurred in 1883, and in 1888 the firm of Skinner & Co. was dissolved, and George Skinner, in the agreement mentioned, solemnly engaged to pay Trueman and William •C. Skinner the sum of ten thousand dollars, which he now testifies after the lapse of ten years has never been paid in whole or in part.
The proof is incontestible from three uncontradicted witnessess, confirmed by all the documentary evidence in the case, that this sum of $9,902.20 belonging to these appellants, was received and applied for his own benefit, by George Skinner in the manner and for the purposes we have set forth; and that no part of this sum has ever been repaid. The assets of George Skinner are in a Court of Equity, under appropriate proceedings, for distribution among his creditors. The appellants have presented their claim for a dividend, George Skinner admits the indebtedness and the appellee (to his credit) has not availed himself of the plea of limitations in his own interest. Why then should the claim not be allowed ?
We can perceive no ground upon which these appellants can be denied the right to participate in the distribution of these assets and we regard their right so to participate as clearly established.
In view of the conclusion we have reached that this debt was a personal debt of George Skinner’s, it is unnecessary to consider how far he might otherwise be liable for aiding Mrs. Turner in committing the breach of trust, which she did commit however unwittingly.
We shall reverse the decree, and remand the cause for further proceedings in conformity with this opinion.
Decree reversed with costs to the appellant and cause remanded.