Sparkes v. . Kearney

55 N.C. 481 | N.C. | 1856

Stephen Sparkes, of the County of Franklin, in this State, made a deed in trust, dated 10th day of April, 1843, to indemnify the defendants Shemuel Kearney and Richard W. Kearney, as sureties for certain debts therein mentioned, and to secure the payment of these debts to the several creditors; in which said deed were conveyed to them, (the said Kearneys,) a tract of land, containing 957 acres, which said Sparkes had bought from Jones Cooke, as the executor of William Harrison, S. J. Jones, and Jones Cooke; also an improved lot of land in the town of Franklinton; also twelve slaves, by name, and their increase after the date of the deed; all his house-hold and kitchen furniture; all his cattle, horses, mules, oxen, sheep, hogs and pigs; also, a wagon; and appointed the said Kearneys agents to collect large sums of money due him from divers persons, to be held on the same trusts. The condition of the trust-deed was to sell the property, and apply the proceeds to the payment of debts specified; to pay the trustees a reasonable sum for their agency and services in selling the said property, etc.; and the residue, if any, to pay over to Stephen Sparkes, or his assigns, and reconvey the property not sold for the purposes of the conveyance in trust. Stephen Sparkes, besides the slaves conveyed, had two other female slaves, Candice and Minerva, which were in his possession at his death, but these are claimed by one White, and a suit is still pending as to them; these went into the hands of his administrator. Sparkes died, in the autumn of 1846, intestate, and all his personal property remained in the possession of his wife up to her death, which occurred in the year 1848. The defendant, Hilliard, administered on his estate on 12th January, 1849. The title of the 957 acres of land proving defective, he was evicted by title paramount. The suit in ejectment was begun in the life-time of the said Stephen, but was decided after his death. A recovery was, however, subsequently (483) had on the covenants in the deed from Jones Cooke, etc., to Stephen Sparkes, and the money collected and paid over to the trustees.

This bill was brought by the next of kin and heirs-at-law of Stephen Sparkes, charging collusion between the trustees and the administrator, and praying an account and settlement of the estate, as well that in the hands of the trustees, as that in the hands of the administrator.

At the August term, 1855, of this Court, it was declared as the opinion of the Court, "that the said Hilliard, as administrator, and the said defendants, Shemuel Kearney and Richard W. Kearney, as trustees, are liable, and ought to account to and with the plaintiffs and others, the next of kin, and heirs-at-law of the said Stephen Sparkes, deceased;" and it was decreed, among other things, that "the clerk do take an account of the personal estate of the said Stephen, deceased, which came to the hands of the said Wm. F. Hilliard, as administrator, or to the hands of any other person, by his order, or to his use. And that he also take an account of the trust estate of the said Stephen Sparkes, in the hands of the defendants, Shemuel Kearney and Richard W. Kearney, as trustees, as well of the realty as the personalty — computing what is due on the said trust, for principal and interest, and to whom; and computing what portion thereof is properly due to the next of kin and heirs-at-law of the said intestate. And it is ordered that the said intestate's personal property be applied in the payment of his debts, and funeral expenses, in due course of administration," etc.

In obedience to this order, the clerk of this Court at Morganton, Mr.Dodge, made a report in extenso upon the several matters referred to him; but only that part which embraces the matter excepted to, it is deemed expedient to notice.

While the slaves were in the possession of Mrs. Sparkes, (immediately ensuing the death of her husband,) a medical bill, taxes and other expenses, were paid by the trustees, and charged against (484) the estate. The first exception to the report is for the clerk's refusal to allow this charge.

While the property was in the possession of the trustees, after the death of Stephen Sparkes, three of the slaves, Hardy, Henderson and Stephen, were, by the trustees, put to trades, and kept working at the same for two years. Mr. Dodge thought it was wrong to put these slaves to such service, and that they ought to pay hires for them during such apprenticeship; accordingly, they were so charged in his report, and this forms the ground of the second exception. The argument in support of this exception was, that the estate received the increased value of the slaves in the amount produced by their sales.

The third exception is, that the clerk has charged the trustees with the rent of the house in Franklinton in favor of the next of kin; whereas, as the defendants insist, rent is to be accounted for to the heirs, when they apply to redeem the land; and that the sum received for damages for the breach of the covenant of seizin and quiet enjoyment is, likewise, allowed in favor of the next of kin, whereas it should be allowed in favor of the heirs-at-law.

The nature of the fourth exception is sufficiently explained in the opinion of the Court.

The fifth exception is, that the hires of the girls, Candice and Minerva, are charged against the administrator, although there is a suit pending against him for the recovery of the slaves themselves.

The sixth exception is, that the clerk has not reported what is due to the heirs, and what to the next of kin.

The seventh exception is sufficiently noticed in the opinion of the Court.

The cause was heard upon a motion for further directions and upon exceptions to the report of the clerk. By an interlocutory decree made in this cause at August Term, 1854, it was referred to the clerk to make certain (485) enquiries, and state certain accounts; which duty he has performed; and it comes on now upon a motion for further directions upon his report and exceptions filed thereto by the defendants Hilliard and Shemuel Kearney.

1. The first exception is, that the clerk has refused to allow, as credits to Kearney the trustee, the payments made by him for medical services rendered to the slaves, while they were in the possession of Mrs. Sparkes, and for the payment of the taxes and other expenses of the said slaves during that time. This exception is overruled. He is not charged for the hires or profits of the slaves during that period; and if he permitted the widow of his grantor in trust to keep them, he ought to have made her pay their expenses while she was using them for her own benefit.

2. The second exception, that the clerk has charged Kearney with the hires of three of the slaves, to wit, Hardy, Henderson and Stephen, while they were learning their trade, and also with their full value, upon the sale of them made afterwards, is also overruled. As trustee to sell the property for the payment of debts, it was no part of his duty to have the slaves instructed in trades. There is no testimony to show that either of the said slaves, except Hardy, was increased in value by these means; and if the value of Hardy were increased, the benefit must accrue to the cestui que trusts, and not to the trustee.

3. The third exception is sustained. The personal property was the primary fund for the payment of the debts, unless the trustee, in the exercise of the discretion entrusted to him, thought proper to sell the lands for the payment of the debts mentioned in the deed in trust. Not having done so, the land, and the rent as an incident to it, belong to the heirs-at-law, instead of the next of kin, and in this case they are not the same persons. For a similar reason, the damages recovered for a breach of the covenant of warranty which occurred after the death of the grantor in trust, must belong to the heirs. If there (486) had been no trust, the land of the ancestor would have descended to his heirs, and, of course, they would have sued on the warranty, and taken the damages. So, the recovery by the trustee must be for their use after the purposes of the trust have been otherwise satisfied.

6. The sixth exception will be considered here, as it depends on the third which we have just decided; and that decision makes it necessary that it should be sustained. As the next of kin, and the heirs-at-law of Stephen Sparkes, are not the same persons, there must, of course, be a report to show what is due to the one class of persons, and what to the other.

4. The fourth exception is overruled; because the testimony does not show that the defendants are entitled to anything for the support and the burial expenses of the slave Isaac. One of the witnesses, Mr. Person, states that while Isaac lived with Mrs. Sparkes, he was worth $25 or $30 per annum; but he knows nothing of him afterwards. Mr. Perry says that he was not worth anything; but no witness states that he was an expense.

5. The fifth exception is sustained; and for the reason which is assigned in it. The girl slaves, Candice and Minerva, have been claimed by another person, and a suit has been instituted, and is now pending for them. If recovered, their hires may possibly be claimed and recovered also by the same person. It was wrong, therefore, to charge the hires at present against the administrator, in favor of the next of kin.

7. The seventh exception is overruled. It is not founded on the ground that the clerk fixed the charge for keeping the slaves Piety and her children, and Betty and her children, at the sums which he reports, without evidence. It is that he fixed it too low. There is no testimony before us to show that it ought to be higher, and we cannot correct the clerk's estimate, without some means of ascertaining what the true charge ought to be.

It must be referred to the clerk to correct his report in the particulars mentioned, and the cause is retained for further (487) directions.

Per curiam.

Decree accordingly.