State v. Fleming

3 Del. Ch. 153 | New York Court of Chancery | 1867

The Chancellor

delivered a long opinion, entering fully into the merits of the case, upon the proof, and not considering the allegations of the information sustained, a decree was entered, dismissing the bill.

Note. — In the examination of the Chancellor’s manuscripts, the reporter laid this case aside as of no value, there being in the notes of the opinion, found among the papers, no discussion of any legal questions. Subsequently, however, it appeared to him that, as forming a part of the extended litigation concerning this estate, it should not be altogether overlooked. Upon reading the opinion carefully,it seemed proper that the detailed examination of the management of the property therein contained should be preserved as a part of the history of the administration of a public trust, under the direct supervision of the Court of Chancery. This impression was strengthened by the subsequent public discussion of the management and history of the trust, evoked by a serious proposal of legislation upon the subject, of a very radical character. The length of the opinion and the fact that it concerned the facts alone, seemed to preclude its insertion here, and it was finally deemed best to make this brief report of the case, in course,and to publish the opinion referred to, or full extracts therefrom, in the Appendix.

State of Delaware, vs. Charles T. Fleming.

Kent, Sept., T. 1867.

The views of the Chancellor, upon the facts of the cause, as expressed at the time of rendering his decision, were as follows:—

The Winsmore and New Wharf Farms.

With respect to these farms, the bill makes three charges of mismanagement. I will take them in order. The first of them is that, during the period between the Trustee’s appointment in 1847, and the date of the improvement-leases made in 1863, these farms were let at greatly inadequate rents. It is alleged that the New Wharf Farm, alone, at Potter’s death, was well worth, and could have been rented for, $400 per annum, and at any time since, for $250, yet, that during all the period referred to, John Redden was permitted to hold both farms at $160. Let us examine the evidence with'respect to the rental value of the New Wharf Farm, at Potter’s death. The highest figure shewn in evidence is by the testimony of Henderson Collins, who states that, three years before Potter’s death, he paid for this farm, $300. That was, say, in 1840, for Potter died in 1843. This may be so; but according to the average estimate of the witnesses for the relators, this would have been excessive, as rent. In 1843, when Potter died, Griffith, who was Potter’s tenant of the Winsmore Farm, a witness for relators, says, there were but fifty to sixty acres of arable land. Estimating the productiveness of the New Wharf Farm, at that date, the witnesses do not, upon the average, state more than five hundred bushels of corn, fifty bushels of wheat, one hundred bushels of oats, and twenty-five bushels of rye. This is precisely the statement of Griffith, who seems to have been most familiar with these two farms. He was tenant of the Winsmore Farm in Potter’s lifetime, and, since then, has resided, most of the time, on the farm adjoining the New Wharf Farm. The prices of grain I take as given in the accounts passed for 1847, and the two or three succeeding years, $1.10 for wheat, forty-five cents for corn, thirty-eight cents for oats. The price of rye I do not find. None of the witnesses put the customary landlord’s share at more than one-half. Assume this as the proper rent; then what is the result. Taking the crops of the New Wharf Farm at Potter’s death, to be as estimated by the relators’ witnesses, and allowing one-half for rent, and then, supposing that this farm remained equally produtive until 1847, when Fleming became Trustee, and to have been then rented to Redden on the usual terms, viz; one-half in kind, it would have yielded the Trustee, say two hundred and fifty bushels of corn, at forty-five cents, twenty-five bushels of wheat, at $1.10, and fifty bushels of oats at thirty-eight cents, making, as the produce of these crops, $144,05. Add to this, the value of, say twenty-five bushels of rye, and we have certainly about all that could have been.realized as rent from the New Wharf Farm in 1847. Now to the rental of the New Wharf Farm, must be added so much as could have been made out of what Redden cultivated of the Winsmore Farm. But this, according to the testimony, did not exceed seventeen acres; that was all of the Winsmore Farm left tillable at Potter’s death. It must be remembered that, according to the testimony of all the witnesses, the Winsmore Farm was left, by Potter, in an utterly desolate condition, almost without building, and growing up in pine wood. Griffith, a witness for the relators, who lived on it in his lifetime, states the arable land there to be only fifty to sixty acres, and the rent to have been $75 ; and soon after, according to Anderson, this farm became tenantless, and the old house on it was. at one time, used for small-pox patients, the land continuing to grow up in pine, leaving only seventeen acres of tillable land. So it stood when Fleming took it in charge, and rented to Redden in 1847. It does not appear to me;from the testimony, that the whole property, New Wharf and Winsmore, as it stood in 1843, could have yielded a rental greatly, if at all, exceeding $160, nor in the interval between 1843 and 1847, were there any means whatever, and there was not, even then, any Trustee, to improve it. Manifestly, the best and only course left in 1847, was to till the seventeen acres with the New Wharf Farm, to let the pine growth mature, sell it off, and then make a farm out of this Winsmore tract, and that has been done. Under these considerations, I cannot hold the Trustee chargeable with mismanagement, in 1847, in then renting at $160, the New Wharf Farm, with the small part remaining tillable, of the Winsmore Farm. Nor can he be so charged for continuing the farms at the like rent until the improvement-leases were made, notwithstanding such advance as there may have been made in the prices of grain; for against these there, must be set the continuing depreciation of the buildings and lands for the want of repairs and fertilizers. The witnesses do not impute bad husbandry to the tenant, but some, the contrary; what they speak of, is the inevitable deterioration from constant tillage without fertilizers. These, there were not means to provide, no system of improvement being adopted by the Court, until January, i860, a delay, the causes of which will be hereafter explained.

The next charge as to mismanagement of the Winsmore and New Wharf Farms is the waste of wood and timber. And, first, as to the alleged waste on the Winsmore Farm. The charge is that, on this farm, wood and timber was largely cut, that it was cut by Redden, the first tenant, while he held it; afterwards, by the Andersons, the next and present tenants; also by other persons, not named in the bill, but who, from the testimony, must be understood to be J. B. Davis and Nehemiah Davis.

Let us examine the evidence, and, first, as to Redden. He has held the New Wharf Farm since 1848, and, in connection with that farm,’tilled what was arable of the Winsmore Farm until the year 1863. It then remained vacant until January, 1866, when the Andersons took it, under an improvement-lease, for twenty years from January 1, 1866.

Now what is the proof as to cutting, by these tenants ? First, as to Redden, there is no evidence further than this statement by Dorsey, in reply to the fourth interrogatory in chief, which relates to the Wins-more Farm. “John Redden is the only tenant, to my knowledge, who “ has cut any wood, and I don’t think he cut moré than ten or fifteen “ cords. I think he hauled and sold it to Milford.” Now Redden was tenant of the New Wharf Farm while James. B. Davis was cutting and hauling under a woodleave from Winsmore Farm, and Mr. Dorsey had just before stated that Redden was engaged with Davis in cutting and hauling. Redden’s hauling, therefore,might be accounted for by the fact that he hauled for Davis, and such would be the fair inference unless the evidence definitely pointed to his hauling for his own use, fraudulently. This Mr. Dorsey’s statement does not do. It is indefinite as to time and circumstances, and not positive in what he does state. It would be weak testimony upon which to convict Redden of fraud, and is no testimony at all to affect Fleming, whose connivance is not charged; nor, considering the small quantity supposed to be hauled, could even neglect, be inferred. Then, next, as to the alleged cutting by the Andersons, they who, as already stated, took the Winsmore Farm, in January, 1868, under an improvement-lease.

In their lease, they stipulated to cut off, clear, and bring into cultivation, certain specified portions of the wood-lands, to sell such wood as might not be suitable for building or fencing, and to. apply the proceeds to the improvement of the farm, in certain particulars. The cutting was a duty, not a privilege. Such a provision was rendered proper; it might be said, necessary, by the peculiar condition of the farm. It had a very sandy, poor soil, not profitable for cultivation, and it had been judged best to leave it to grow up in young pine, so much that, at this time, there remained only about seventeen acres of arable land. In a tabular description of the several parcels of the trust estate, returned to the Chancellor by the Trustee in 1851, it is described as'“ a wilderness of young pine and other growth. ” It had now become an object to get the land cleared, enclosed, and fertilized. Bell, one of the relator’s witnesses, gives the opinion that the land was worth more cleared1, than with the wood; that the wood was not valuable. Prior to the year 1862, as appears by the Trustee’s Annual Report of that year, in order to get the land cleared, he had offered the wood, or certain portions, to any one who would clear off, grub, and prepare it for cultivation, but no responsible person would undertake it. Some portions of it, about this time, were sold under woodleaves. This mode of clearing off the wood, left the land to be grubbed, fenced, and prepared for cultivation; and as the young pine wood was of small value, sales of the woodleave were probably of no greater advantage than to have given the wood for the clearing, grubbing and preparing the lands, as at first offered by the Trustee. It was to carry out this object, i. e., to get the lands cleared, and under tillage, and to make this tract a farm, which it had not really been, that the Trustee, in leasing to the Andersons, took from them the stipulation to cut off some of the wood. I can see no fair ground of objection to it, especially as the stipulation expressed, secured the proceeds for the benefit of the farm, the Andersons’ share in which benefit was their whole return for the labor to be bestowed by them. Now there is testimony that the Andersons did cut and sell wood from this farm in 1866 and 1867. The material question, then, is, did they cut and sell more than they were authorized to do under the lease ? There is no evidence to show that they exceeded their authority, or, I might rather say, their duty. B. D. Anderson testifies that they cut about twenty acres, and that the wood was cut under the provisions of the lease, and proceeds applied as required by it. I cannot find anything to controvert this statement. The relators’ witnesses give estimates of the quantities of wood cut on the Winsmore Farm. Most of them estimate only the whole amount cut, both by the Andersons and by the purchasers of the wood. From these we can conclude nothing, as to how much the Andersons cut. Some of the witnesses undertake to estimate the quantity cut'and sold by the Andersons, only. But their estimates are so widely diverse that they prove nothing except the inherent infirmity of such testimony. For example, Nehemiah Davis supposes they sold one hundred cords. Dorsey, one thousand two hundred,to one thousand five hundred cords; and Griffith goes as high as one thousand five hundred, to one thousand six hundred cords. Eubanks,hitting a medium,puts it at five hundred cords. William Hill, from six hundred to eight hundred cords. Joshua Hill supposes they cut from fifteen to twenty acres. These witnesses are honest, but to what judicial conclusion can such testimony lead ? Certainly, inasmuch as the Andersons had authority to cut, I must refer their cutting to the authority given them, and require some more decisive evidence before pronouncing them and the Trustees guilty of a fraud upon the trust. Next arises a question which, though not in issue, I could not exclude from attention, i. e., whether the Andersons put the proceeds of the wood sold back upon the land. The improvements stipulated for, in return for the proceeds of the wood sold, and other benefits of the lease,were to be a new two-story dwelling house with brick wall,stabling and outbuildings, the old to be used as far as suitable; the cleared lands to be laid off in three fields, with five hundred bushels of lime used, annually, and orchards to be set out. I find, by the testimony, without any controversy, that all these stipulations have been fulfilled, and, without any doubt, that the Andersons have put upon the farm as much, if not more, than can have been taken from it in wood.

Then we come to that part of the charge which alleges waste by persons, other than the tenants, Redden, and the Andersons. There is no testimony whatever of wood or timber being cut on this farm by such “other persons”, except by James B. Davis, and Nehemiah Davis. Now the two.Davis’ and R. C. Hall were, together, purchasers of large woodleaves on the two farms, Winsmore and New Wharf, which lay adjoining each other, J. B. Davis and Hall having ninety-two acres of. the Winsmore Farm, and Nehemiah Davis ninety acres of the New Wharf Farm, over one hundred and eighty acres in all. They had three years for getting off the wood; and were engaged, through that periodj in cutting and hauling from the two farms. It is not surprising if, without transgressing the limits of the purchased woodleaves, they seemed to get off and haul large quantities of wood. Doubtless they did so. But the material question is, is there proof that they cut beyond their limits? Both Nehemiah Davis and J. B. Davis are witnesses, the former for the relators, the latter for the defendant. Their testimony is, that what wood they did cut was under their woodleaves. Against this statement there should besóme evidence; such evidence might be two-fold, either (i) direct testimony that they cut in some other part of the farms not included within the woodleaves; of this there is nothing whatever; or (2) the evidence might shew the hauling of quantities of wood so great as could not have been yielded by the number of acres sold on woodleaves, and thus it might appear, inferentially, that the purchasers had cut beyond the authorized limits. I, therefore, have examined carefully, the estimates of the witnesses as to the quantities of wood hauled by the woodleaVe purchasers. Some of these estimates are mere guesses given by witnesses who profess to have had little opportunity to know; but taking those of witnesses whose opportunities were better, they led to no conclusion. Besides the uncertainty inherent in all estimates of quantities and values, those given by the witnesses of wood cut on the Winsmore and New Wharf Farms, are inextricably confused from this circumstance. One of the wood-leaves embraced adjoining parts of both farms. The quantity cut from each farm was, of course, indistinguishable by those who only saw the hauling to market. It is manifest, in reading the answers to the separate interrogatories respecting each farm, that some of the witnesses, in answering as to each farm, inadvertently give their estimate of the whole wood cut from .both farms, while some attempt to estimate the quantity cut from each farm. Hence, a more than usual diversity. For example, Dorsey says, that from the Wins-more Farm, J. B. Davis and Redden cut and hauled to New Wharf landing five hundred and twenty-five cords, while J. Davis says, that J. B. Davis and Nehemiah Davis cut two thousand cords. Now Nehemiah Davis’ woodleave was on the New Wharf Farm only; so that this witness’ estimate clearly included both farms. The only estimates I have observed, made by a witness of full opportunity, and which clearly distinguished between the two farms, are the estimates of Griffith, who resided within one mile and a half of these farms. He considered that, on the Winsmore, Farm there were from seventy-, five to one hundred acres cut; that J. B. Davis, who alone had the woodleave on this farm, got one thousand five hundred cords; that on the New Wharf Farm, there were from fifty to sixty acres cut; that Nehemiah Davis, who had a woodleave on the New Wharf Farm, exclusively, got one thousand cords; and J. B. Davis, whose Winsmore woodleave extended into the New Wharf Farm, got from the latter, from three hundred to four hundred cords. These estimates are partly within the woodleave sold. But there is another class of estimates which,if made by witnesses having knowledge, are less unreliable than estimates of the number of cords. I refer to estimates as to the number of acres cut. These I find to be much less variant and uncertain than the estimates as to the number of cords hauled. Now it is very observable that the estimates of witnesses, as to acres cut, do not at all exceed the number of acres actually sold for the wood leaves.

The highest of them for the Winsmore Farm is Dorsey’s, at seventy-five to one hundred acres, and, for the New Wharf Farm, Watson’s, at ninety acres. Observe, that there were sold from the Winsmore Farm, ninety-two acres, and from the New Wharf Farm, ninety acres.

As the Winsmore and New Wharf Farms are taken together by the bill, we refer next, to the specification of waste upon the New Wharf Farm. There is no charge of waste by the tenants of this farm; but the allegation runs thus; “that one James B. Davis, and other “ persons, have cut and carried away from this farm, and the said “Winsmore Farm, several thousand cords of wood and large quanti- “ ties of timber, and converted the same into money, which has never “been accounted for by the said Trustee. ”

The evidence bearing upon this specification has already been unavoidably examined in connection with that relating to the Winsmore Farm. We have seen that N. Davis purchased a wood leave on the New Wharf Farm of ninety-two acres, that there is no direct evidence of his cutting beyond his lines, and that the estimates as to the number of cords hauled, or of number of acres cut, do not shew such an excess in the quantity of wood cut and hauled, above what ninety-two acres would afford, as to demonstrate that, under color of the woodleave, wood was cut in parts not sold.

There is a third charge of mismanagement as to the Winsmore Farm, viz; that the improvement-lease made to the Andersons for twenty years, from January 1st, 1866, was at an inadequate rent.

The objection made by the bill and in argument to the improvmentleases was general, applying to several farms; and as the same considerations will be found to apply to all, it will be more convenient to reserve this topic for a separate examination, having considered the other charges of mismanagement as to the several farms. I proceed, therefore, to the Carmean Farm.

The Carmean Farm.

Respecting this farm, the only charge made by the bill is, that during the interval from the appointment of a Trustee in 1847, until the farm was leased to James Thompson in 1862, it was rented at a grossly inadequate sum, only $60, whereas, as the bill alleges, it could have been easily rented to good and reliable farmers, for $200 per year. This allegation that the farm was worth a rent of $200, is wholly unsustained. Even Henderson Collins estimates the rental value, in Potter's lifetime, as from $100 to $150. James Davis, another witness for relators, puts the rent, in Potter’s lifetime, at $80. These are the only estimates made by witnesses, on either side, as to the rental value} at Potter’s death. Taking the average between them as a basis, say $100 or $110, and allowing forthe inevitable depreciation, during the three years following Potter’s death, while there was no Trustee, we should not expect to find, in 1847, when Fleming was appointed Trustee, a productiveness which would yield a rent of more than $60 or $70. Certain it is, from the accounts of the rents received by Fleming, immediately after his appointment, which were rents in kind, one-half, that these figures cover the rents then actually yielded, Thus, for 1845, the corn rent produced $53.40, wheat and oats $5,68, total $59.08. In 1846, the rent received was six bushels of wheat, $5.25; ten bushels oats, $3.75, and- seventy-five bushels corn, which, being sold in the spring of 1847, at the then advanced price of eighty cents, brought $60, making a total rent for that year of $69. In the next year, 1847, the farm yielded the landlord a share of only seventy bushels of corn, and the price falling in the spring of 1848, to forty cents, only $28 was realized. There was, in all this, certainly a reasonable inducement to the Trustee to substitute, as the accounts shew he then did, a Certain rent instead of a rent in kind. For one year after this, the year 1848, there was a certain rent of $70. After that, it stood at $60, until the year 1862, when James Thompson took the farm under an improvement-lease, at $100.

The small productiveness of this farm, as shown by the accounts, is consistent with the testimony. It was a small farm, containing, according to the survey of record, 59 acres of arable land, with a soil naturally good, but overworked and unfertilized. Of wheat and oats it would yield very little. It was available only for corn. This is the concurrent testimony of the tenants. The buildings, as left when the Trustee took the farm, were hardly tenantable; “the dwelling not fit “ to live in,” is the language of the witnesses on both sides, “not fit “for a human being to live in,” says Richards; “not comfortable for “man or beast,” says J. Potter. As to outbuildings, they are spoken of by one, as “none that could be called such,” by another, as “exceedingly sorry and not worth mentioning;” by another, as “none of any “account.” One witness (Jester) describes them as “ mere pens made “of cedar poles.” It is proved that, from time to time, some repairs were made to preserve the property from utter destruction, as roofing the dwelling house, keeping up the gates, &c. No permanent improvements could be made, without rebuilding out and out. Looking the whole matter over, I am unable to see how the Trustee, with the limited means he had, could have done more to improve this farm, or to increase its productiveness, until this Court should adopt some general system for improvement which it was not warranted to do, and did not do until after the litigations ceased, in 1859.

The bill next proceeds to the Anderson Farm.

The charges, in the bill, touching the management of the Anderson Farm, are twoFirst, that the farm is, at this time., intrinsically of less value than at the death of the testator, by reason of improper culture, neglect of repairs, and the waste and destruction of the wood and timber. Secondly, that it is now rented, under the improvement-lease, to Cubbage, at less than one-half what might be obtained therefor: The latter charge, I reserve for consideration in connection with the subject of improvement-leases, and take now, the first charge as to the alleged depreciation, in value of the farm.

This allegation, applied, as it is, to the farm in its present condition, since the adoption of the system of improvement-leases, is not sustained by the evidence. So far as opinion goes, the weight of opinion, even of the witnesses for the relators, is, that the property is intrinsically worth more than at Potter’s death, not to speak of it, as it came into the Trustee’s hands, three years afterwards. Many of these witnesses say directly that, by the repairs, and by the bringing in of more land into cultivation, the farm has been increased in value j and other witnessess, who do not directly state this result, imply it in the estimate they give of the present rental value of the farm, all putting it higher than formerly. But facts more than opinions are derisive on this point. The facts are these. At Potter’s death, the buildings and fences were poor, and the soil thin and not productive. So say J. Davis, J. Hill, Griffith, Eubanks, Henderson and W. Hill, witnesses for relators. On the other side, the testimony of J. Potter, Redden,Thompson, Jester, D. B. Anderson, Herring, J. B. Davis, Richards, Hammond and Henderson, show that the dwelling was a two-story house, the lower story of logs in a dilapidated condition, without substantial barn or outbuildings, the soil poor and much overrun with Sassafras and other under-growth. The rents from 1847, when Fleming became Trustee, until 1852, were small and irregularly paid, with not less than four changes of tenants. In 1852, Joseph Wyatt became the tenant at a rent of $37.50, a larger rent than is shewn by the previous accounts.

In 1857 Eli Hammond took the farm at $45, a small advance, and held it until 1863,when it was rented to Cubbage, under an improvement-lease, at $100. Since 1863 the land has been cleared up and put, as the witnesses say, “into farm-like shape,” and new buildings erected. There are a new two-story frame dwelling, with a back building of a story and a-half, a covered porch, back and front, new smoke house, new garden-fences, new brick well. The old dwelling has been repaired and fitted up into a barn and carriage-house. The cost was from $1500, to $1700. This is the testimony of the carpenter who did the work.

Now the highest estimated rental value, at Potter’s death, is $100. J. Davis puts it at $100. Henderson Collins at $80. No other estimates are given. That it yielded materially less when Fleming was appointed, is apparent from the proved condition of the farm, as well as from the accounts. The relators’ witnesses now estimate the rental at various figures, but all higher, — $100, $125 and $150, so that, as to the charge that the farm is now deteriorated through “improper culture’’and “ neglect of repairs, ’’.the proof is directly the contrary. Then as to the other alleged cause of deterioration, viz; the waste of wood and timber, it is enough to say that, of this, nothing is proved beyond the cutting by purchasers of woodleaves, sold under the order of the Chancellor. Nothing is said in the testimony of any cutting by tenants, or by the Trustees, but only by Wm. Tharp or Daniel Griffith. This was under a woodleave of forty acres of pine, struck off to Tharp, but returned by the Trustee as sold to Griffith.

The bill next proceeds to the Reeson Farm.

Respecting the Reeson Farm, the charges of this bill are two: One is, that the Trustee, in 1863, discharged Morgan, the former tenant, notwithstanding he was a good farmer and offered an advanced rent $205, and leased the farm to Reedy, an inexperienced and inferior farmer, at a lower rent, $100, or $150.

The alleged offer by Morgan to remain at a rent of $205, is wholly unproved. As the answer neither admits nor denies such offer, it could, if made, have been established by the testimony of Morgan alone. Yet, though a witness in the cause, he is silent on this point. The only testimony touching such an offer, are the hearsay statements of Watson and H. Collins, statements legally inadmissible. Wilson says, “I think said Morgan paid Charles T. Fleming about $125, before “the new building was erected, and he offered about $200 for it “ after the new building was put up, and it was rented, as I have under- “ stood, for less money than what said Morgan offered, hut I can’t “speak positively as to this fact. ” Here is a statement upon mere rumor, ascribed to no source, and made in very doubting terms. It affords an apt illustration of the uncertainty of hearsay testimony. For the proof by Morgan himself is, that before the new building was erected he paid$75. rent, (not $125 as the witness understood,) and that, after the new building was erected, instead of offering about $200 rent, he held the farm two years at $100 rent. The other witness, Henderson Collins, bases his statement on the information of Morgan. He says, “at the same time, ” i. e., when Reedy became tenant, “Morgan offered Charles T. Fleming, so called Trustee, $205 rent if he would “ let him stay, but notwithstanding he rented said farm to James Reedy “ for $150., as Wm. Morgan himself told me. ” Now I cannot receive as evidence, th,e unsworn statement of Morgan, made outside to Henderson Collins, of a fact which Morgan, though examined as a witness and inquired of as to the point, has not seen fit to staté, under oath, in in the cause. The statement is not only inadmissible under the rules of evidence, but is against all probabilities. Then we pass to the other ground of the charge of mismanagement in the change of tenants, viz: that Reedy was an inferior farmer. I have carefully lead all the expressed opinions of the witnesses, and noted the results of the respective modes of farming by these two tenants, Morgan and Reedy.

It does not become necessary to make comparisons between them : it is enough to say that the divided weight of opinion of the witnesses, and the admitted improvement in the condition of this farm, shew that Reedy, though originally a shoemaker, became a competent farmer. The testimony is that he was sober, industrious and thorough-going, of good character and competent means ; that he has done much hard work, cleared up and brought into cultivation new land, repaired fences, laid the farm out into four fields, sowed grass seed, put on lime, and tilled the fields with rotation of crops, so that the whole farm has improved in general appearance and condition. This is stated, in detail, by witnesses who have not been themselves tenants of the trust estate, as J. Potter and J. A. Potter, and they are corroborated by all the defendant’s witnesses who speak to this point at all; almost all the witnesses for the relators admit that Reedy has tilled the farm as well, and some say better than Morgan did. One of them, Bell, says of Reedy, “ I regard him as an excellent farmer; in my opinion the farm “has never been so well tilled as it has under Reedy.” “Its present “ condition, as to fertility, exceeds what I have ever known before.” Only two witnesses, out of the whole number, think Morgan a better tenant than Reedy; yet both of these admit the farm to be now in a much improved condition.

I, therefore, dismiss the’ whole charge of the bill based upon the change of tenants.

The other charge of mismanagement respecting the Reeson Farm is, that the tenant, Reedy, was permitted greatly to waste the wood and timber. This charge against Reedy is twofold; First, that he had cut off, and, at filing of the information, was still cutting and hauling away and converting to his own use, large quantities of cord-wood. Second, that he hauled awav posts and rails and used them on his own farm, without accounting for them to the Trustee. First, as to the cord-wood. It appears from the evidence, that when Reedy took this farm under an improvement-lease, in January, 1863, there was a point of woodland of about seventeen acres, which it was necessary to cut and clear, in order to divide the farm into four suitable fields for tillage. Reedy, by his lease, stipulated to cut and clear this part of the woodland. The timber was to be made, so far as might be, into posts and rails. What could not be thus used, was to be sold by Reedy, and the proceeds to be applied in permanent improvements, under the supervision of the Trustees. Reedy, being examined as a witness to this point, states that he cleared the seventeen acres, made into posts and rails what could be so used, and cut the rest into cord-wood, about one hundred and seventy-five cords; that he used his fire-wood out of it, and sold the balance, about one hundred and twenty-five cords, clearing about $1 per cord. He distinctly asseverates that all that he cut off, not used in fencing, was put back on the farm; that out of the proceeds he built a new brick milk-house, at a cost of $75, put a pump in the well, costing $14, and the balance expended in lime; that he put pa more lime than he was bound for by his lease. Now, with respect to the quantity cut and hauled by Reedy, his statement does not so far vary from the estimates of the witnesses for the relators, as to be discredited. Their highest estimates are two hundred cords, some are less; Griffith’s, one hundred cords; Eubank’s, fifty to one hundred. As to the disposal of the proceeds of the wood sold by him, the testimony for the relators’ witnesses is silent: the testimony for the defendant, strongly corroborates Reedy’s statement. Several of these witnesses,as James Potter, Cubbage and Yardley. understood,at the time of the cutting, that the proceeds were to go for fertilizers and improvements; James H. Potter, Cubbage, Yardley and Jester, testify to the improvements, particularly to the use of the posts and rails in the setting of a considerable amount of new fencing, and repairing of the old fences.

Next, is the charge that Reedy hauled away and used, on his own land, posts and rails, without accounting for them. Reedy, it seems, owned a farm in the neighborhood of the Reeson Place, and three witnesses, Davis, Griffith and Morgan, testify to having seen him, several times, haul, Griffith says, posts and rails, and Morgan says, cedar poles, to his farm. It does not appear that the witnesses saw these posts, rails or poles, taken from the Reeson Farm, or were, in any way personally cognizant that they were so taken. Davis indicates no personal knowledge on the subject. Griffith says, that he only saw the posts and rails hauled on Reedy’s farm, and that he could not say that they came from the Reeson Farm. He says he believes they did; but his belief is not evidence. Morgan, in his examination-in-chief, speaks of the poles as hauled from the Reeson Farm to Reedy’s farm ; but his examination shews that, as to their being taken from the Reeson Farm, he had stated his inference, and not his personal knowledge ; for upon examination, he states what he did see, and that was, Reedy with his wagon hauling poles on his own land. This is, the precise state of the proof. Now I could not, from such evidence, the mere inference or belief of witnesses as to what they profess no knowledge of, judicially conclude that the'posts and rails were taken from the Reeson Farm. It is, at most, sufficient, only to excité suspicion. Yet, suspicion is not a ground for legal judgment. This evidence, however, infirm as it is, does not stand unopposed. It is encountered by the denial of Reedy, who, on his examination as a witness, positively avers that he never did cut or haul any wood or timber on this farm, except what went to the use of the farm in materials or proceeds. His denial, though that of the person interested, must stand against statements resting merely upon suspicion, and not proof.

The bill next proceeds to the Evan Morgan or Tanyard Farm..

The only charge touching this farm is founded on the transfer made by Joseph Yardley, the former tenant,under an improvement-lease, to the Barkers, who aré the present tenants. Yardley took the farm under an improvement-lease for twenty years, to commence January 1st, 1864, at a rent of $150.00; of which, for fifteen years, $50.00, was to be expended in permanent improvements, and, for the last five years, $25.00 to be so expended. There were various stipulations for improvement by the tenant. Now, the charge is, that, shortly after the execution of this lease to Yardley, he, the said Yardley, transferred the same to one Charles Barker, and another at an advance of $1000, or more, which sum of $1000, or more, the said Yardley kept for his own private use, and in no manner accounted therefor. The facts in relation to this transfer, rest upon the sole testimony of Yardley, a witness unimpeached and entitled to full credit. He states that the Tanyard Farm was leased to him in the fall of 1863, possession to be given January 1st, 1864. That, in fact, possession was not given him until February, 1865. The cause of this delay appears by other evidence as well as Yardley’s. Evan Morgan, the former tenant, refused to yield up the premises in January 1864. Proceedings under the Landlord’s Act followed, pursuant to which judgment was rendered against the Trustee. A certiorari to these proceedings was taken, and the judgment reversed by the Superior Court; subsequently, a writ of possession was obtained by the Trustee. These proceedings involved delay through the year 1864. In January 1865, the Trustee, with the Sheriff and Yardley, went to the farm in order to the execution of the writ of possession. Upon the entreaty of Morgan for ten days’ delay, in order that he might find a home, and, with Yardley’s consent, the Trustee postponed, until a future day, the execution of the writ. At the appointed time, upon returning to the farm with the Sheriff and Yardley, Morgan was not there, but in his place was Henderson Collins, claiming to be in possession as Morgan’s assignee. As the writ was against Morgan, by name, the Sheriff declined to dispossess Collins; whereupon the Trustee himself forcibly ejected Collins and put Yardley in possession. A few weeks afterwards, in February, during Yardley’s absence from home, Morgan and his two daughters obtained possession of the house, and, on Yardley’s return, attempted, forcibly, to hold it, stating that they had been advised to this course. He forcibly ejected them, was afterwards indicted for assault and battery on the daughters, and incurred a small fine with costs. Discouraged by these annoyances, Yardley sought to dispose of his lease, and agreed with the Barkers, for a transfer, subject to the approval of the Chancellor, which, under the terms of all these leases, was required to give validity to any assignment. The Chancellor approved of the transfer, and in order to carry it more conveniently into effect, the old lease was surrendered by Yardley, and a new one, with precisely the same stipulations, was granted to the Barkers, commencing January ist, 1865. Yardley, after renting in the fall of 1863, expecting to take possession in January 1864, had incurred considerable expense in getting rails and posts for fencing, had purchased mules, harness, &c., and hired a man. Failing to get possession, he had been obliged to rent a house and provide for his man and mules for nearly a year, expecting, from time to time, during the year 1864, to get possession. As an indemnity for his expense and trouble, the Barkers, by agreement, paid him $500. It is not shewn that the Trustee was privy to the transfer, that he shared in the money paid to Yardley, or even had any knowledge of it, or that he derived any benefit whatever from the transaction. His answer denies that he had any knowledge of the payment until after the transfer had been completed.

Now in all this transaction, I can see nothing which implicates the Trustee. The lease to Yardley was granted with the approval of the Chancellor, and upon terms which, to my own judgment, on examination of the facts, appear just and reasonable. In the obtaining of this lease no collusion, whatever, between the Trustee and lessee appears. The subsequent desire of Yardley to get rid of the lease is naturally accounted for, and, under the circumstances, it was the duty of the Trustee and Chancellor to relieve him, if this could be done without prejudice to the estate, and the result has been advantageous to the estate. That Yardley should receive from his assignees indemnity for his expenses, was reasonable; at all events it was a matter which concerned them alone, The Trustee had no claim, legal or otherwise, to anything except what was reserved to him under the original lease. Nor in the re-letting should a higher rent have been exacted from the Barkers; for this would have been in violation of the right of Yardley to the benefit of an assignment of his lease, as it stood, which, in substance, the transaction was intended to be.

Next in order, is the farm known as the Clark Farm, in tenure of Herring. As to this farm, the charges of mismanagement are two. One concerns the terms of the lease, it being an improvement-lease, for twenty years, from January 1st, 1866. Reserving this charge to be considered in connection with the improvement-leases generally, I proceed to the other charge, which is, that the tenant of this farm, Herring, has cut and earned away “several hundred cords of wood, besides “ large quantities of timber, which he has converted into money, none “ of which has been accounted for in any manner whatever. ”

This charge must be founded upon some misapprehension. For all the wood and timber upon the same, was sold to Hazzard, Carlisle and Curry, in April i860, and was cut off by them before Herring took the farm.

This farm, at Potter’s death, was out at commons. It consisted of ninety-eight acres and sixteen perches of arable land, and two parcels of woodland and wood cripple, one of seventy-four acres, the other of fourteen acres. Both these parcels of woodland were sold to Hazzard, Carlisle and Curry, at the sale of April i860, and are exactly described in their contract. In accordance with the fact that all the wood was cut off at the date of the lease of Herring, he stipulated to enclose the new ground, so as to make four fields of the whole, and provision is made for getting rails, not on this farm, but on other parts of the trust estate.

In the testimony relating to this farm, and Herring’s occupation of it, two witnesses, Joshua Hill and Dorsey, charged him with having hauled timber, wood, bark and posts from this farm. The witnesses may have confounded this farm with other parts of the trust estate, some of which were contiguous to this. At all events, however, I lay out of consideration this testimony as connected with this charge of the bill. It will be adverted to in another connection.

The next charge in the bill is, that the Trustee leased other and smaller tracts to William Burton, to Daniel Curry deceased, and to other persons, “ at merely nominal rents, grossly inadequate, and far “below what might be obtained therefor, from good and reliable “tenants. ”

There was an improvement-lease to Dr. Burton, of the Cullentown and Reuben Turner tracts, in all, forty-five acres, near Milford, for ten years from January ist, 1863. I pass this for the present. No lease of any part of the trust estate appears to have been made to Danl. Curry. As to the “other persons” referred to in this charge as having taken leases at “ merely nominal and grossly inadequate rents, ” they are not specified in the bill, nor has the argument or evidence enabled me to find them.

Respecting the Cullentown tract, there was a charge made in argument, though not in the bill. It was this ; that upon the granting of a new lease to Van Vorst, the present lessee, to carry into effect an assignment from Burton, the original lessee, Van Vorst should have been required to pay an additional rent commensurate with the improved condition of this tract, subsequent to the leasing to Burton. But it should be observed, that the improvement was the result of the labor and outlay bestowed by Burton, and for which he was entitled to’ remuneration, either in his continued possession of the tract for the term of the lease, or by compensation from Van Vorst, his assignee. According to the past effect of the lease, the improvements were to inure to the benefit of Burton, over and above the rent, during the term, and to the benefit of the trust estate at the expiration of the term. Therefore, upon an assignment of the term, (which all the leases provide for, subject to approval,) compensation for the improvements made by the lessee, is due to him and not to the estate. Nothing can be clearer than this. It should be added, that the terms of the lease to Van Vorst were for a longer term than that to Burton, being for twenty years instead of ten, and that, for the latter part of the term, under the new lease, a large rent was reserved, leaving, however, the terms unaltered during the original ten years.

I will next take up a charge of waste committed by James S. Richards; also by Marshall Taylor. The bill charges that these men were in the habit of cutting and hauling away woods-timber from the trust estate at large, and of converting the same to their own use.

It is proved that Richards did haul, from different tracts, white oak saw-logs. From New Design, H. Collins supposes he hauled-as many three hundred logs. J. B. Davis puts it one hundred. From the Chambers tract, Collins says he hauled twenty logs. From the tract of one hundred and fifty acres adjoining Yardley, (the Haslet tract,) Hett says he hauled some logs; the number is not estimated. Griffith says twenty were hauled from the tract. This is all the testimony as to the háuling of logs. All the witnesses say they were hauled to the Haven Mills.

Now the Haven Mills were run by Richards. According to the answer and testimony of Richards, also of Herring, Richards was employed by the Trustee to haul and saw lumber to be used in building and repair on the farms. Richards states that he did so through several years; that he hauled for Fleming, and also for some of the purchasers; that what he hauled for Fleming was sawed at his mill into building materials; and that the whole of it was hauled back again to the farms and then used; that he was paid for his services, in part, by Fleming, and in part by some of the tenants; and he sets forth a statement of the quantities secured and the amounts received by him as compensation.

Richards further states that he never cut any wood or timber from the trust estate, except while lessee of the Clark farm, for a short time, he cut some wood and put back the proceeds in fertilizers on the farm.

With respect to the saw-logs, there is no evidenee whatever against the answer, and Richard's testimony; and I must consider the hauling of these logs, as sufficiently explained.

Griffith, in connection with what he says about saw-logs, states, that Richards hauled eight or nine cords of wood to his house in Milford for fire-wood. The statement does not purport to be made upon the witness’ personal knowledge, nor can I so assume it. I could not, in any case, much less, considering how much of the testimony has been taken without discrimination between hearsay and direct evidence. So general a statement, which may have been upon hearsay only, can not weigh against the positive denial of Richards that he ever has converted to his own use any wood and timber from this estate.

The charge that Marshall Taylor was permitted, frequently, and in large quantities, to cut, and convert to his own use, wood and timber, rests solely upon the statement of H. Collins that, on one occasion, while Taylor was building a barn, he cut and hauled from the Evan Morgan farm, a large white oak tree. The witness does not state this. He expressly says, he does not know that Fleming was cognizant of any such thing as of his own personal knowledge. All the other witnesses expressly disclaim any knowledge of Taylor’s having ever cut wood or timber. This charge is not sustained.

We have no.w examined, in order, all the special charges of the bill touching the mismanagement of the different farms, and parcels of real estate, except the charges as to some of the farms that they were let under improvement-leases upon terms grossly inadequate. These I propose to consider together.

The whole subject of improvement-leases, so far as it concerns the responsibility of the Trustee, (which alone is the issue here,) might be disposed of by a single observation; that is, that the system of improvement-leases was adopted by the late Chancellor, upon his own judgment, guided by the recommendations of the Commissioners appointed to consider and report upon the condition of the trust-estate, and the best means for its improvement, and not under the advice or influence of the Trustee; further, that in applying the system, each lease has been, before it took effect, submitted to the Chancellor for his approval, an approval not merely formal, but always made upon examination of the case. The duty of the Trustee is to negotiate, in the first instance, the terms of the letting, and to submit to the Chancellor the result with proper information. His responsibility is to act with good faith in procuring the best terms which offer, and to lay them before the Chancellor, giving him the information necessary to his exercising an intelligent judgment upon the case.

Now, there is no evidence of any act of bad faith, misrepresentation or concealment, on the part of the Trustee: nor of any renting to unsuitable persons, (for all objections of that kind have been disposed of,) nor is there evidence of any rejection of more advantageous offers, or of fraudulent collusion with any tenant. The evidence of Bell, respecting his offer for the wharf property, leased to McColley, is not an exception to this remark. McColley held a lease of this property for six years at $30 rent. Upon his application to the Chancellor for an extention of the term, upon the same rent, that was refused. After-wards a general order was made, on December 18th, 1866, for the perpetual leasing of certain parts of the trust estate, not suitable for either annual or improvement leases; and among these, it was contemplated to include some parcels already under leases for short terms, provided any such lessee would surrender his original lease, and consent to pay, as an annual rent, such sum as disinterested men, mutually agreed on by the Lessee and Trustee, should determine to be equal to six per cent, on the fee simple value of the premises. Under this order, McColley agreed to surrender his lease and take a perpetual one on the terms provided for in the order. The referees were chosen, and made their award at $50, and, pursuant to it, the Trustee, as Mr.

Bell’s testimony shews, was preparing the lease. At this juncture Mr. Bell offered $75. The Trustee replied that it was too late, considering that, by the arrangement so far executed, Mr. McColley was entitled to a lease upon the terms awarded. I should have so considered it myself, had the matter been reported to me. Now, though it might have been prudent in the Trustee to have reported the circumstances, still I can see no ground upon which to impute to him bad faith or improper motives in the omission to do so.

We observe then, the charge of mismanagement, in the granting of these leases, rests, not upon any proved acts of fraud, collusion or bad faith in the Trustee, but solely upon the alleged inadequacy of the rent reserved. But considering that the terms of the letting were approved by the Chancellor, and upon a fair submission of the terms to his examination, which, in the total absence of evidence to the contrary, we must take to have been made, and I have no doubt whatever on this point; considering this, the objection brings into question, not the conduct of the Trustee, but, rather, the judgment of the Chancellor in approving these leases. Now I do not propose to review or reconi sider the approval of these leases, because it would be to no purpose in this cause, since, whether the Chancellor erred or not, it does not affect the trustee, he not appearing to have either misled the Chancellor or to have withheld any information within his power, and,

But, I am also persuaded that no opinion now formed, as to what terms of leasing it was expedient, under the circumstances then existing, to grant, can be so reliable as a judgment exercised by the Chancellor upon the circumstances at the time. More especially must this be true as to the leases approved by the late Chancellor Harrington, and which have served to guide in those since approved. In sound, practical knowledge and judgment, the late Chancellor was surpassed by few, if by any; and the records shew that he gave to this estate,and particularly to the system of improvement-leases, his special attention and interest. I find among the papers, the original draft, in his handwriting, of the advertisement offering these farms upon improvement-leases, setting forth the advantages to lessees, and inviting persons interested to consult with himself, personally. I am well satisfied that he brought his own judgment to bear on each case, and his judgment exercised in view of the depressed condition of the property, and the unsettled situation of the country,and the difficulty in obtaining suitable tenants, circumstances better understood and appreciated then, than they can be now, is certainly a better test as to what then were adequate and proper terms of letting, than any opinion now formed can be. Because, opinions now formed are insensibly influenced by two circumstances, the improved condition of the property resulting from these very leases, and the enhanced value of real estate, generally, from circumstances which have since occurred, such as the termination of the war, and the increase of immigration and of railroad facilities. Before, however, quitting this topic, in order that the omission, formally, to re-examine the terms of these leases may not be subject to misconstruction, I will say that the investigation of this case has left on my own mind a clear conviction that the terms of these leases were, under the circumstances, reasonable and adequate, and the best that could have been obtained.

We pass now to another topic, i. e., the charge of improper conduct in the sale of woodleaves.

The Court, on January 30th, i860, directed the sale of woodleaves in order to raise money to improve the land. Pursuant to the order, the Trustee made four sales, on the dates of April 5th, i860, May 3rd, i860, November 7th, i86r, and November 19th, 1861.

The charge of the bill is two fold. (1.) That defendant, at one of these sales, rejected the bid of H. Collins, who, it is alleged, was a responsible bidder. (2.) That there was general partiality and contrivance to sell to favorites at inadequate prices.

The defendant did refuse to receive Collins’ bid. This was at the sale of April 5th, i860. It is not necessary to enter into the considerations and circumstances bearing on this transaction. I have read and carefully considered all the evidence relating to it; and, on reflection, find no ground on which to arraign the discretion of the Trustee making such sales, to accept the “highest and best bidder. ” I think this discretion was honestly exercised.

Then, as to the charge of general partiality and favoritism. I have scrutinized the evidence in order to gather some act or transaction, if such there were, indicative of partiality, favoritism or unfairness of any kind. There is nothing. The whole testimony to this point, apart from what relates to Collins’ bid, already considered, is this:—

Collins is the only witness who positively charges partiality. ' He says it was shown to Tharp, Curry, and proceeds to base the charge on the fact that these men went out to the woods before the sales, and fixed the price they were to give. But he says nothing to connect Fleming with them in so doing. He further states that, at a sale, April 5th, i860, of a woodleave, on the Clark Farm, Fleming rejected his bid and sold to Tharp, who was his uncle. But Tharp did not buy at that sale. All he bought was on the Anderson tract, at a sale, November 7th, 1861, eighteen months after the sale of the Clark tract. The buyers at that sale, when Collins’ bid was rejected wére, Hoy, Carlisle and Curry.

Joshua Hill says, “I am not able to say whether the defendant in “ this cause, so managed or conducted said sales or so me of them, as ‘‘ to secure his own personal friends or relatives to be the purchaser or “ purchasers thereof, but I am rather inclined to think that some partiality was shewn by the said Fleming to his friends. ”

Watson says, “I am inclined to believe that he (Fleming) was “ partial to his own personal relatives.”

Dorsey says, “I believe the aforesaid defendant in this cause, did so “ manage, or conduct said sales or some of them, as to secure his own “personal relatives or friends, to be the purchaser, or purchasers “ thereof.”

Again, “ my opinion is, that there was an understanding between “ Fleming’s friends, that they should buy the aforesaid woodleave at “ a reduced price.”

S. Collins says, “ I am inclined to believe that the defendant “ shewed partiality towards his friends in the sale of the aforesaid wood leave.”

These are all of the witnesses for relators who speak adversely to the fairness of the sales. Others of them who attended the sales, received no impression that partiality was shewn, and one of these, Wm. Hill, who attended two of the sales, one being that at which the Clark tract woodleave was sold, says, “ I consider that all of the sales I attended “were fair sales.”

It would not be respectful to counsel to discuss the point that the suspicions of witnesses, however respectable, prove nothing. The integrity of the defendant in these sales can be impeached only by facts. The only two facts suggested by the bill, and by any witness, are, (1,) the rejection of Collins’ bid, which had been already noticed, and, (2,) an alleged inadequacy of the prices obtained. With respect to the prices of the woodleaves, opinions of witnesses, even those of the relators, differ widely. As to the Mispillion sales, all agree that they brought full value. As to the woodleaves near Milford, my impression, from the testimony, is, that some of them did sell below their value.

I say some of them, not all. For as to some of these woodleaves, the witnesses generally agree that a fair value was obtained. That some of the tracts should have sold low, is not extraordinary, for all such purchases are made upon speculative estimates of value and of profit, and cautious purchasers allow themselves a good margin. There was no such inadequacy as to be at all demonstrative of any fraud or collusion.. At best, it could only induce scrutiny into the proceedings, to see that they were regular and fair. In this respect, I can find nothing defective. The woodleaves were fully advertised by bills well circulated, and offering all proper inducements to bidders, and the sales were fairly conducted. They were duly returned to the Chancellor, the Trustee setting forth his proceedings in detail, and no objection or complaint was made at the time. These sales were, in fact, made at a period of general depression, early in the civil war, and there is one fact disclosed by the testimony of William Hill, which makes the want of full value in some of the sales, more apparent than real. It is this; the sales were largely of pine wood, over three hundred acres, against less than two hundred acres of other kinds of wood, i. e., of the woodleaves around Milford. As to the Mispillion wood-leaves, there is no complaint. Now, pine wood, during the course of the war, and after these sales, rose to an unprecedented price. The cause must readily occur to any mind ; the exclusion of the Southern pine from market. The effect of the rise continued, and no doubt has influenced, insensibly, the estimates of the witnesses. None' of these, except Wm. Hill, distinguish between the value of pine, at the time of those sales, and afterwards. He states that the biddings for the pine were of its fair value, and all it would bring at the time.

But whatever may have been the cause of the sales of any of the woodleaves below their full value, I cannot, by any facts proved, trace it to the defendant’s default.

Another charge in the bill is, that Fleming removed one of the boundary stones of the Clark tract so as to give to the adjoining owner, Eli Hammond, several acres; that this was done corruptly, in order to propitiate Hammon, who had previously been his enemy.

The answer flatly denies the removal of this, or of any other boundary stone, to the prejudice of the trust estate.

Against the answer, stands the testimony of H. Collins and Joshua Hill.

Collins says, “ The said defendant has removed, or consented to a “ removal, of a boundary stone or mark on a portion of the said trust “property, commonly called the Clark tract. Chas. T. Fleming “ caused the said boundary stone to be moved; when it was so removd, “ I went with Evan Morgan, found the hole from which the boundary “ stone was taken, and measured the distance it had been carried, “ which was about nine feet. This was done to give Eli Hammond a “portion of the Potter land. I have no recollection, precisely, when “ this occurred, but it must have been seven or ten years ago. I think “ Eli Hammond got about two acres of land by the removal of this “ boundary stone. Eli Hammond was not friendly with said Fleming “ at this time, and said Fleming gave these two acres, more or less, to “ purchase his friendship.”

Here the witness discloses no personal knowledge of the fact of removal, but only his own previous suspicion, founded upon what he does not state, and acting upon this, he looks for, and, as might be expected, finds a hole somewhere near where the boundary stone stood. The statement falls far short of proof where there is nothing to the contrary.

Joshua Hill puts the matter in quite a different shape, but not stronger. He says, “ I know” (how he knows does not appear) “ that “ Eli Hammond has taken from one-eighth to one-fourth of an acre from “ the Evan Morgan farm (not the Clark farm) and enclosed it. I “ think he did it with the permission of Chas. I. Fleming, the Trustee.”

Here is no knowledge testified to of anything. Though witness professes to know that Hammond took in some land, he shews no ground of knowledge, which only the Court could receive as evidence against Hammond. But as to Fleming, the witness professes to know nothing. He only thinks or suspects.

This is not the evidence of two witnesses required by the rule of equity in order to rebut the denial of the answer, even if these statements stood alone. But they encounter also Hammond’s testimony, which flatly denies the whole charge, and positively asserts that the boundary stones between his land and the Clark tract, stand as they always have stood since he knew the properties.

Now I do not question that the statements of Collins and Hill were honestly made. But they were made upon rumor, a rumor which, under the manifest readiness of many to suspect all that Fleming did, might well have sprung from the fact disclosed by Cubbage, that on one occasion, Fleming did remove a boundary stone oí the Anderson Farm, while running the line between that and the Owens farm adjoining. According to the plot, the stone was found to be within the line of the Anderson tract, and he set it out on the line, as he claimed it to be, thus giving the Anderson tract more land.

Compromise with Doysey.

The next charge in the bill is, that Fleming, having obtained an injunction to restrain the laying out of a certain public road, which was proposed to be laid out across one of the trust estates in such manner as greatly to injure it, did afterwards, while the injunction was pending, agree with Wm. Dorsey that it should be dissolved, provided that an indictment then pending against him for assault on Dorsey with intent to kill, should not be further prosecuted.

This charge is answered by the records of the injunction suit, and of the indictment, together with Wm. Dorsey’s testimony. The answer is, the fact, that the injunction was dissolved some two months before the assault on Dorsey was committed. Six months before the indictment was compromised.

The facts are these; — on the 25th of September 1861, Fleming, upon his petition to the late Chancellor, obtained an injunction to restrain the laying out of the road in question, under proceedings then pending, pursuant to the Act of Assembly passed January 1861. There had been several attempts to procure this road; first by proceedings in the Court of General Sessions, under which the free-holders, appointed by the original order, had recommended the road, but other free-holders, under an order of review, had rejected it. Then the Legislature intervened by the act referred to, and'appointed free-holders to open the road, and make return to the Levy Court, subject to its approval. Under this act, a majority of the Commissioners laid out the road and returned it to the Levy Court, which, approving the same, appointed Dorsey overseer to open the road. To restrain him from so doing, the injunction was obtained, grounded upon alleged defects in the Act of the Legislature, and an objection also to its jurisdiction. This was in September 1861. At the ensuing session of the Legislature, that body again intervened by an act of January 31st, 1862, which declared the road laid out under the previous act, to be a public road, and ordered the overseer peremptorily to proceed and open it for travel. Manifestly, the act was intended to over-ride the injunction. The petition for the injunction was not followed by a bill, and was dissolved upon motion, April 1st, 1862. What were the considerations which induced the Trustee to desist, it is not material to inquire. His annual report to the Chancellor, made September, 1863, assigns, as the reason, that he yielded to the manifest determination of the Levy Court and Legislature to have the road. The answer alleges that Dorsey, after being served with the injunction, resigned his overseership, and so the proceeding failed for want of a party-defendant. However this may be, there is no' evidence that any corrupt motive influenced the Trustee in abandoning the injunction. That he was not induced, as was alleged, by a compromise of the indictment, is certain. For it was after the injunction was dissolved, that is, in May 1862, that the assault on Dorsey was committed. So he states in his examination. The first indictment for this assault, the one which charges the intent to kill, was found in Oct 1862, and continued to the April Term 1863. At that Term a nolle prosequi was entered, and a new billfound, chargeing only an assault and battery. This was done, not as part of the compromise, for Dorsey, in his testimony, alleges that it was brought about through the influence of Fleming’s friends with the Attorney General. Then, after the second bill was found, and, as Dorsey says, on the morning fixed for its trial, in April 1863, one year after the Injunction had been dissolved, a compromise of the second indictment was effected through the mediation of George S. Grier. The terms of the compromise were fixed in a conversation between Dorsey and Fleming alone. Dorsey, in relating that conversation, does state, that one of the terms of the compromise (among others) was, that the injunction should be dissolved. But Mr. Dorsey speaks several years after these transactions, and, doubtless, under a confused relation of the circumstances. That might well be, without any intention to misstate.

His testimony, even were it not in conflict with the transactions, as of record, could not, as the testimony of one witness, prevail against the denial of the answer. There was no other witness to the conversation, Grier having retired when he brought the parties together.

The offer of $1500 per annum.

There is still another charge in the bill. It is, that the Trustee has refused to accept an offer, made by good and responsible persons to lease the whole trust estate at an annual rent of $1500, with a stipulation to pay the taxes, maintain repairs, and protect the property from pillage and destruction.

This charge may be disposed of briefly, by three observations.

I. There is no sufficient proof that such offer was made. The inquiry is put under the 17th interrogatory-in-chief, to each of the witnesses for the State, none of whom profess any knowledge upon the subject, except, that H. Collins, in the course of his answer to the 13th interrogatory-in-chief, makes this statement; — ■

After he “ (Fleming) ” was appointed, several good and responsible men offered $1500 per year beyond all reprises; that is to say, ground rents, all taxes, and the keeping up of repairs. ■ Among these men, Davis Walton, John Maston and others, offered to take said property for ten years or longer. The witness states nothing as of his own knowledge. I cannot take it as amounting to more than hearsay or rumor ; and, as a rumor, it is surprising that it came to the hearing of none of the other witnesses who were inquired of about it. But,

II. The Trustee had no authority to lease the lands and could be in default in not accepting such an offer, if it were made. Had there been any such serious and responsible offer made before the improvement-leases were given, it would have been proper for him to report the fact to the Chancellor. The evidence creates no reason to doubt that he would have done so,

III. Again, it may be remarked as extremely doubtful, whether such an offer, if made, ought to have been accepted, or would have been. Its rejection would have been but the exercise of a fair discretion and involving no culpability. The question would have been between the expediency, on the one hand, of yielding the lands up, say, ten or more years, to persons interested to overwork and exhaust, rather than permanently to improve them, and, on the other, to put them in a course of gradual and permanent improvement and of future productiveness at some present sacrifice. The two policies are antagonistic. The latter was recommended by the Commissioners, and approved by both Chancellors, Johns and Harrington; and we must presume any contrary proposal would not have been entertained. I am not at all prepared, from the consideration I have given the subject, to question the judgment of my predecessors on this subject.

We have now examined all those charges in the bill which are supported by specifications. It is upon these, as before stated, that the real issues in the cause are raised. Were this a cause involving only private interests, I should feel bound here to close the investigation, leaving untouched some other charges, which are whplly general, unsupported by specifications, and also some matters, introduced into the testimony, which are not covered, even by a general charge. But, considering that this case involves the administration of a public charity, and that the transactions inquired of. are those of the agent of this Court, I have not felt warranted in closing my eyes to anything which the record might show relevant to the object of the bill; and, therefore, have examined, to these points, the whole evidence presented, with the determination that, should the record disclose any facts gravely impeaching the fidelity or competency of the Trustee, which, from the want of sufficient specifications in the bill, there had not been a fair opportunity given him to deny or to disprove, I would direct such further investigation as the case might require.

The first of these general charges is a very grave one. It is alleged that the Trustee has, at different times, received large “ sums “of money from the said trust property, which he has not accounted for “to this Honorable Court, but which he has applied and appropriated “to his own private use, thereby enriching himself to the great wrong “ and detriment of the poor white citizens of Kent County, outside of “the walls of the poor house.”

Certainly such a charge ought not to be made except upon facts, ascertained with a good degree of certainty, and specifically alleged, that the Trustee might be able to answer them and adduce counter proof. To the charge, made as it is, however innocent he might be, he can oppose nothing but a general denial. This he has done. What, now, is the evidence relied on to countervail his denial.

The Trustee filed in this Court, annually, since his appointment in 1847, accounts of his receipts and disbursements. These have been put in evidence and examined by the counsel for the State.

The result of that examination was stated at the bar of the Court. It was that the Trustee had omitted to charge himself with sundry rents, as follows:

(1.) The Winsmore and New Wharf Farms. These were rented, from 1848 to 1863, to John Redden, at an annual rent of $160. The counsel for the State alleged a deficit of $467.50. Upon a careful examination of the accounts, I find the rents of the whole period, from 1848 to 1863, at $160 per annum, accounted for, except the sum of $60. My additions are short that amount.

(2.) The Anderson Farm. It was alleged that the Trustee had not accounted for a rent of $37.50 due from James Wyatt for 1853. The Trustee charges himself, in January,1855, with $15.08, recovered from Wyatt by suit, before a Justice, for rent in arrear in 1854. This leaves a deficiency of $22.42. The allegation at the bar also extended to 1855 ; but Wyatt did not remain tenant that year. So I conclude from the evidence. This farm was poor and almost without any improvements, as represented on all sides, and unfortunate in its tenants from 1847 to 1858, when Ellis Hammond took it, and seems to have been without a tenant for several years after Wyatt left it.

3. The Reeson Farm. It was alleged that the rent of this farm for 1855, which was seventy-five bushel of corn from the tenant Morgan, was not accounted for. This rent does not appear in the account for 1855, as copied on the record of the Potter Charity, to which record the counsel referred in their examination, but it does appear in the original account, and was doubtless omitted in the copy of record through inadvertence of the Clerk.

Again, it was alleged that, according to the testimony of Morgan, the then tenant of this farm, some improvements were put upon this farm about 1861, after which he was to pay a certain rent of $100.00; that the Trustee charges himself with $100.00, for the year 1861, and only with $50.00 for the year 1862. Such is the state of the account. It is not, however, true that Morgan testified to his having actually paid the whole $100.00 due for 1862. The effect of his testimony is that, after the house was put up, his rent was $100.00, not that he actually paid it.

.4. The Mispillion Farms. From one of these, the farm occupied by John Brown in 1849, it was alleged that the rent for that year, $50, was not accounted for. This is'true.

No-other deficit in the accounts was alleged at the bar. The result then, is, that the Trustee has not charged himself with the following sums as rent: $60.00 from the Winsmore and New Wharf Farms, $22.42 from the Anderson Farm, $50.00 from the Reeson Farm, and $50.00 from one of the Mispillion Farms.

Now, with respect to these omissions, it is to be observed,—

1. There is no evidence, whatever, that the rents omitted to be charged against the Trustee had been collected.

2. The Court will not presume they were collected. Fraud is never presumed. This is a fundamental rule, as well of law as of charity. It applies generally; a fortiori in this case; for of these charges, no notice, by allegation in the bill, or otherwise, has been given. The defendant has had no opportunity to oppose them by a specific denial, or by counter-proof, but the general charge he has met by a general denial, the only kind he could make, and his general denial is positive and unqualified.

3. The true and proper effect to be given to these omissions was, to call for explanation to the Chancellor at the time these accounts were passed. As they were submitted to his examination, and were approved and passed by him, I will not unravel them without some evidence of fraud, or, at least, some stronger suspicion of it than arises from the omission of four rents, or parts of rents, occurring in accounts, embracing so many parcels of property, and extending through a period of eighteen years.

A second charge, made generally and without.specifications is, that the Trustee cut, and converted to the use of his own farms, wood and timber, posts and rails, from the trust estate.

The Trustee, by his answer, positively denies this.

I have reflected upon the statements of several witnesses, relied on to support this charge, and do not find them sufficient, either in legal or moral force, to outweigh the Trustee’s denial under oath.

First, are the statements of Collins and Morgan that, many years ago, they saw Fleming’s boy cutting wood. Each speaks of a different transaction. Both are vague and indefinite statements, and made by exceedingly prejudiced witnesses, at open quarrel with the Trustee. Neither, however, undertakes to charge Fleming with knowledge of his boys cutting. The same is true of Morgan’s statement, that he one day saw Cyrus Stockley, a negro tenant of “ a small house of Fleming’s, “cut kindling in the Anderson woods.” The negro, when accused by Morgan, said, that Fleming gave him permission. This is certainly not evidence to charge Fleming; it is not even a ground of reasonable suspicion. It was a natural excuse for a negro caught in a trespass.

Again, Eubanks and Collins state that the Trustee got from the trust estate, some gate posts. Collins does not say how many. Eubanks saw two gate-posts, in Fleming’s pound which he supposed “came off “ the Potter land.” Neither of the witnesses fix any time. This testimony finds a full explanation in the Trustee’s account, passed in 1853. There were two division gates between his farm and one of the trust farms, which were put up at the joint expense. There were four posts got off the trust estate, valued at $1.50. The total cost of posts and gates was $11.25 which was divided, the estate and the Trustee each paying one-half. All this is plainly stated in the account, and one circumstance, besides, which in this transaction shews all possible exactness; for one of the gate-posts proved unnecessary; and for the value of these the estate is credited in the account.

Again, it is stated in the settlement in Dorsey’s testimony, that the Trustee permitted Wyatt, tenant of the Anderson Farm, from 1853 to 1855, to skin bark for one half the proceeds; how much is not stated. That is true; but it is also true, that in his account for 1853 and 1855, the proceeds of bark sold by Wyatt are accounted for.

Then, again, Eubanks states “that he saw" Fleming remove a fence “from the lane of the Anderson Farm, and put it on his own farm.” Dorsey also says “ that, between the Anderson Farm and Fleming’s, there was a lane, fenced originally on both sides; but that Fleming’s fence, being a poor one, he took to his own side the one between the Anderson Farm and the lane, leaving the Anderson Farm without any fence.” How he knew this is not stated. The explanation is given by Cubbage, who was tenant on the Anderson Farm and Littleton Daniel, tenant of Fleming’s farm. They both state that Fleming had a fence on his, the side lane, which stood unchanged. Before Cubbage moved to the Anderson Farm, rails had been provided for a new fence on the Anderson side of the lane; but the posts giving out, the rails were laid temporarily along the lane on Fleming’s side. Being an obstruction to the use of the lane, Fleming directed Cubbage to haul them away and fence other parts of the Anderson Farm, stating that, other rails could be procured for the lane fence, when the posts were ready.- The witnesses declared that the rails were all used on the Anderson Farm and none on Fleming’s.

There is another charge of the same nature as those before stated, made by Mr. Dorsey in his testimony. It is that, about twenty years ago, Fleming, by a ditch, made under an Act of the Legislature passed, had taken ten acres off the New Wharf Farm,,and .ever, ^incp,used ft with his own farm. The statement.is, general ¡and does.not purport ,tp be made upon personal, knowledge. ■ ilt finds,its explanation 1 in .the. fact that, in 1845, Fleming bought ten acres of meadow adjoining his, .and the Potter land, which1 was. sold. by the Constable^, Jos..S. iTruitt, for taxes under a ditch law.'■

A third general charge (in the bill is, that the 'iVus't’ee allowed tie woodland to be wasted and pillaged by. the tenant’s And other persons.

Following this general 'chárge, thdfe-are made,- in .connection .with the alleged mismanagement of-certain farmsj-¡specifications of-the waste of timber on those farms. These have’-been considered.' - Butin addition to these specifications of waste in the bill, testimony was adduced to .shew that there haá'been'smaller" pillage’s'ai different times, not specified in the bill. It is these which now' come"’’under examination.

On this point, the largest amount ¡of tjip.tcstim.on.y.is that which goes to implicate several of the tenants in getting wood and rails from the two tracts, known as New Design and the Phillips or Chambers tract. These are Reedy, Herring, the Barkers and Yardley. They were tenants of the farms lying along the road from Milford to Dover, contiguous to each other, i. e.., the Reesón, Tanyard and Clark farms, and also adjoining two distinct tracts of woodland, the tract called New Design of forty acres, and a tract of forty-eight lying back of the Milton lot; being tracts N. and P. on the recorded plot. The three farms, when leased to these tenants, had very little woodland. What woodland there had been, lay in such positions that it was deemed expedient to sell the principal portions in wood-leaves, so as to allow of a proper division into arable fields, and to supply the necessary materials for fencing and other uses from the adjoining tracts of woodland, N. and P., reserving them for the common use of the farms. A large amount of wood was necessary for farming and building materials on all these farms. For, in all of them, new land was brought under cultivation, and the Clark farm was wholly to be fenced and buildings to be erected. Hence, in these leases to Reedy, Herring and the Barkers, permission is given for getting, from these adjoining tracts, rails and other necessary wood materials, and connected with this fact, is the evidence that these tenants did, under their leaves, proceed to put upon their respective farms extensive improvements in fencing and otherwise. These circumstances are a satisfactory explanation of the statements made by some of the relators’ witnesses as to the cutting of wood and rails by Reedy, Herring and the Barkers. I have read all these statements. They are very general and indefinite, mostly upon hearsay and, as to quantities, are but guesses. Against Yardley, who preceded the Barkers, there is but one statement, i. e., by H. Collins, who says that Yardley got rails from New Design. Doubtless, he did; for it is in evidence that, under the stipulations of. his lease, he had got out some rails for the farm before assigning his lease to the Barkers. There was, in all these leases, a stipulation that any bark pealed from the timber cut, should be sold by the tenant, and the proceeds, less expenses, paid to the Trustee. How much bark was pealed, or whether all was accounted for, cannot be definitely ascertained. The Trustee, in his accounts, charges himself, at sundry times, with proceeds of bark. In the absence of evidence to the contrary, it is fairly presumable that the bark was accounted for.

Next, I notice some statements,by the witnesses, of acts of small pillage by four persons who were not tenants; two of them negroes. None of them are charged upon personal knowledge of the witness, except one, a negro. I will not name these persons, being unwilling to implicate them upon hearsay charges. I am, however, satisfied that some small sort of pillaging has been committed in the woodlands near Milford, by persons not tenants, but this was not to any considerable amount, nor moie than a large estate in woodlands, not privately owned, must be liable to. I am also satisfied that, on the Mispillion lands, some of the tenants have, at different times, cut and carried away wood not within the privilege of a tenant, and to a considerable amount.' But with respect to all these acts of pillage, there is no evidence even tending to connect the Trustee with them. On the contrary, the evidence of the relators discloses efforts <n his part to detect and punish pillagers of the Mispillion lands.

The only testimony, even tending-to connect the Trustee with any acts of unauthorized waste, is the statement of Eubanks, that he saw Redden hauling to Milford some wood from the New Wharf Farm, a week or two before the witness was examined, and that Redden then told him that “ Fleming had given him two or three acres of beautiful “fine timber.” But what Redden said to Eubanks is not evidence to be regarded under any circumstances, especially not, considering that Redden was himself a witness in the cause and not examined to this point. The statement is not only legally inadmissible, but so highly improbable as to carry no moral weight.

We proceed to another among the grounds of complaint in argument, though not made the subject of any specification in the Bill. It is the omission of the Trustee to improve’certain portions of the estate. These are the tracts known as the Chambers tracts, the Haslett tract, and the Mispillion farms. The Chambers land isa small tract of seventy acres of wood and old field, left at Potter’s death without improvements, and not rented. It adjoins the Anderson Farm, and had hitherto been used to supply that farm with wood-materials. . The Haslett tract contains one hundred and ninety-five acres of wood and old field, grown in pine and cedar, with a small portion enclosed, on which is a small house. The Mispillion Farms are two, one of three hundred, the other of two hundred acres of wood and poor land, with inferior buildings, poorly fenced, and soil not productive. The general condition of these tracts, at the filing of the information, was about the same as at Potter’s death. They were not improved, and yielded no more to the trust fund.

That these portions of the trust-estate remained unimproved, up to the filing of this information, carries the impression of neglect, somewhere. But, if any impartial person will patiently trace up the history of this trust, and consider all the embarrassments which have attended it, yielding, at the same time, just credit for the improvements which have been made upon the estate, as a whole, he will hesitate before ascribing the delay to bring up these tracts, to gross neglect, if to neglect at all. Up to the year i860, any permanent improvement of the lands, or of any part, was impossible, through want of means, and the inability of the Court, in consequence of successive litigations affecting the title to the estate, to provide means by sales of wood and'timber. And when, in the years i860 to 1862, these sales were made and means raised, sufficient, as was then supposed, and the necessary improvements were undertaken, the sums raised were exhausted, and a considerable amount beyond, in improving the farms at Milford Hundred, which, not unreasonably, were the first objects of attention, so that nothing was left for the Haslet and Mispillion tracts. In 1862 these farms were first offered for improvement-leases. But the worlc, as we can readily see, was attended with difficulties. There was required not the ordinary class of country tenants, able to till for the time being, in the usual way, and render a share, but those of sufficient means and force of character, to undertake and carry out, through a series of years, a system of improvements. The class of such men, both capable and willing to undertake, was limited, and yet quite a number of farmers offered. That the Trustee experienced this difficulty, appears in his report, in September 1863, which, as part of the history of the estate of record, and having been mads long before this controversy arose, is entitled to credit. Though the lands were extensively advertised in May, 1862, by an advertisement, most attractively setting forth their advantages, drawn by the late Chancellor Harrington, and now among the papers proved, still, up to January 1863, there were but three leases obtained; one other in January 1865, and three, not till January 1866. It was then that this information was filed; from three to four years only, after the system of impiovement-leases was inaugurated. Now, I cannot feel that, under all these manifest difficulties in finding suitable lessees, willing to take these lands, the lapse of three or four years, from 1862, when the order for leasing was made, until early in 1866, when this information was filed, is sufficient to convict the Trustee of culpable negligence in failing, within that time,to get all of these farms under improvement-leases. The further lapse of time since 1866, affords no ground upon which to charge neglect, because 1 have known, officially, the fact, that effort has been made to lease these remaining farms, efforts which have resulted in putting the two Mispillion Farms under improvement-lease in the year 1868. At this time all the lands are under improvement-leases, except the Haslet tract, several small tracts of woodland contiguous to farms, and used to supply them, and also some very small parcels of land, not of sufficient size to lease for farming purposes,, and which, .under a general order of the-Court, made in ¡December, i860, have been put under perpetual leases, at an-annual rent equal .to six per cent, upon their fee simple value, the-value ascertained-by., impartial judges.

We Will pass now to notice three points of a general nature, upon which much testimony was taken, and stress laid in the argument, and strongly relied on as supporting the charges made by the information.

, (i). First, is the large .body of testimony for the relators, consist: ing of the opinions of witnesses, that the Trustee has not managed this estate with due diligence and fidelity. Haying considered all'the facts and cirumstances relied on as demonstrating fraud,, neglect or mismanagement,, what. effect now should be giv.en to the general opinions of the witnesses, as evidence ?

' It should be remarked that, were opinions on such a subject a proper ground for the judgment of the Court, it would be difficult to pronounce against the Trustee, because he stands sustained in the testimony by opinions, alike positive, of witnesses equal in number and credit to those who impeach him. But the more correct view of "this point is, that opinions on such a subject are of no weight, as evidence, beyond the facts testified to. It is not a case for experts. It is for the Court, ■ not for the witnesses, to adjudge the question of neglect, bad faith or mismanagement: this' judgment to' be formed upon the facts áiid circumstances to which the witnesses testify; opinions adverse to the Trustee may'rightly induce and stimulate scrutiny and caution; no more effect should they receive; and this much has been given to them. Every circumstance, stated in the evidence, has been carefully weighed, and every view of the case presented in the argument has been considered.

(2). A second ground relied on *in general support of the'charges of the bill, was the opinions of witnesses that the trust estate had, since Potter’s decease, greatly deteriorated, so that its intrinsic .value, estimated without reference to the general advance of real- estate, is less now than at Potter’s -death; or, .in other words, if the general market value of-lands were, now, no more than-at Potter’s -death, these lands would not be worth as much as they were then. The point of this objection must be, that there has been a - deterioration in the actual .condition of the property as--to improvements and-fertility. •

Some deterioration occurring, anterior to the year i860, would not prove neglect or mismanagement; for, up to that time, there were no sources for the permanent improvement of the property known to this Court, nor has the evidence or argument disclosed the existence of any such resources. Further, up to that date, no scheme for raising means, as by sale of wood and timber, could have been adopted, because, until about that time, the title to the land was in litigation. But if it were true that subsequent to i860, since when the property has been under a scheme of improvement, no improvement has, in fact, resulted, but, on the contrary, a continued, serious deterioration, this would argue a sad mismanagement somewhere, which the Court should promptly seek to discover and remedy. To this point,therefore, I have given earnest attention. One source of the alleged depreciation in value, and one which enters largely into the estimates of the witnesses for the relators is, a waste of wood and timber. Some loss was sustained in the pillaging of the woodlands in the earlier period of the trust. The amount cannot be estimated from any data afforded by the testimony; nor is this necessary; since, as to these early pillages, the Trustee is not implicated. Wood and timber, to considerable amounts, were cut under sales ordered by the Court. But the proceeds of all this went to improve the arable portions, in the way of buildings, fencing and fertilizers. This fully appears by the accounts, by the testimony of many witnesses, and by the improvements themselves, on the farms, patent to all the world. So that what was lost in value to the woodlands, was gained to the arable lands; and for the objects 01 the charity, the gain exceeded the loss, inasmuch as the improvement went directly to the increase of the rents, which alone are, by the will of Col. Potter, devoted to the charity.

The sale of the wood-leaves did not, in its result, cause any general depreciation of value, but the contrary. What then, it remains to ask, — and it is the really material question, — what is the present condition of the arable lands as it respects buildings, fences, number of acres in cultivation and fertility of soil, and other improvements, as compared with their condition at Potter’s death ?

Now, while it is true that these tracts, as the Mispillion Farms and the Haslet and Chambers tracts, do still remain unimproved, it is impossible to shut our eyes to the marked improvement of the large body of thése lands. Two farms, the Clark and Winsmore Farms, may be said to have been created under the trust. The Clark Farm was abandoned to common by Potter in his lifetime, and was left without any buildings, or a panel of fence, or improvments of any kind. There are now a good two-story frame dwelling, 16 x 40 feet, with a story and a half back-building, two porches and cellar, new smoke house, new barn of two stories, with stable, wagon house, carriage house and cow sheds, yard and garden paled in, and brick well settled; also a house for a farm hand. The farm is divided into four fields (under fence) on which five hundred bushels of lime have been put, annually, and the whole, according to the general testimony, is in a good state of cultivation. On the Winsmore Farm, at Potter’s death, there were two old one-story houses joined together with posts, rotted, and the weatherboards gone, and no out-buildings, no well, no garden. What had been arable land had become a wilderness of young pine and cedar, leaving but a small portion fit for cultivation, only sufficient to be tilled in connection with the adjoining farm. Now, on this farm there is a new two-story cottage-built house, with two-story back buildings and porch, a new smoke house, a new stable for four horses, a carriage house, a barn, not built at the taking of the depositions, but stipulated for in the lease; the farm divided into three fields, and five hundred bushels of lime annually applied. Then, as to the other farms, the New Wharf, the Carman, the Anderson, the Reeson, and the Tanyard, though at Potter’s death there were some improvements, it is the concurrent testimony of the witnesses on both sides, that the improvements were very inferior, the dwelling houses hardly tenantable, fences invariably poor, and soil worn out and unproductive. All these farms formerly yielded, in the whole, a rental of $465, subject to taxes and repairs, under exhausting tillage, and with no stipulation for improvement by the tenants. They are npw all supplied with new and substantial dwellings and out-buildings, corresponding with those on the Clark and Winsmore farms, already described, are divided into the usual number of fields, well fenced, tilled with a proper rotation of crops, and annually supplied with fertilizers. The same marked improvement is true of the Cullentown tract. These farms embrace substantially all the arable portions of the estate, except the Mispillion and Hazlet farms. ,

(3.) There remains a third ground relied on in general support of the charges of the information. That is, the fact that, to this time, after a period of, say, twenty-five years since Potter’s death, the trust estate has yielded no net surplus to be applied to the charity, whereas, it is estimated by sundry witnesses for the relators, that the estate, with due care and management, would have yielded a net rent, clear of taxes and repairs to a large amount. The estimates vary from $1200 to $2000.

Now th.is objection receives its force from these estimates. But I am obliged to say that these estimates, though'honestly made, are not reliable. For, besides the infirmity which inheres in all estimates of quantities and values, and particularly, it would seem, in what concerns real estate, these present estimates are subject to several special objections.

(a.) One is, that they are based upon the present improved condition of most of the farms, and are estimates of what the farms, so improved, would yield under the ordinary mode of renting, in which the whole rent is paid in money, and, not as under these leases, part in money and part in improvements to be put on by the lessees.

(b.) Another objection to these estimates is, that they are made without a due appreciation of the extreme embarrassments which have attended the management of this estate, as all shall presently see, growing out oi its naked and impoverished condition when taken in charge, and the inability of the court, until a recent date, to undertake its improvement. Very probably the hindrances to the improvement of the estate were not fully known to many of the witnesses, nor were distinctly before the minds of any of them. And this brings us to notice the true cause of the failure of the estate, so far, to yield a net revenue. It is this ;—

From 1843, when Col. Potter died, to i860, the Court was disabled, by a series of litigations affecting the title to the trust estate, from carrying into effect any system for permanent improvement. Measures to this end were twice undertaken, but were arrested and held in suspense. Meanwhile, the rents of the estate, which were small, and could not be materially increased, were absorbed by expenses and repairs.

Adverting now to the hinderances encountered by the efforts to improve this estate, it will be remembered that, though Potter died in 1843, the trust was not established until 1849. The validity of the devise of these lands to charitable uses was contested by Col. Potter’s heirs-at-law, under the advice of three of the most able and eminent counsel. The Court of Errors and Appeals, at the June Term 1849, affirmed the validity of the devise. Immediately, thereupon, the then Chancellor ordered a survey of the whole real estate with a view to locate the several tracts and settle the boundaries preparatory to the adoption of some system of improvement. The survey was accomplished in 1850. Just at this time, a bill in equity was filed in behalf of the legatees under Col. Potter’s will, for raising, by sale of part of the real estate, a portion of the legacies, the personal estate of the testator having proved insufficient to pay them. This claim was adjudged by the Court of Errors and Appeals in favor of the legatees, and, therefore, a portion of the real estate was sold to satisfy the legacies. These proceedings reached to the close of the year 1854.

The trust being now established and all claims upon it satisfied, the then Chancellor, Johns, in 1845 appointed three citizens of the county, Peter F. Causey, Joseph P. Comegys, and James S. Buckmaster, Commissioners to consider and report a scheme of improvement. But just at this juncture, an Act of the Legislature was passed, directing the sale of the whole real estate, in its then condition, and the investment of the proceeds upon the like trusts. This measure arrested further progress towards the improvement of the estate. The validity of the act for the sale of the whole estate was drawn into controversy, and the question finally determined, in the Court of Errors and Appeals, in June 1858, against the validity of the act. Thereupon the Commission ordered by Chancellor Johns was issued. The Commission made report in October 1859. The Commissioners reported that the lands were not then sufficiently tenantable to command that class of tenants suitable to take them upon improvement-leases. They recommended that portions of the wood and timber should be sold, and the proceeds applied towards the erection and repair of buildings and improvements preparatory to a system of long leases. In accordance with this recommendation, the late Chancellor Harrington, in December 1857, ordered the sale of certain portions of wood and timber, and the application of the proceeds, with the accruing income of the estate, to repairs and improvements. Under this order, sales of woodland were made in February and April, i860, and still later, in November 1861, another sale was made. After the first two sales, proposals on the part of builders were advertised for, and the work put under contract, and the improvements and repairs detailed in evidence, were made on New Wharf, Anderson, Carmean, Reeson and Tanyard farms.

These improvements being completed, the Chancellor, in April, 1862, made an order reciting that many of the farms had been put in a condition to be leased under improvement-leases, and directing the Trustee to advertise for suitable tenants, and negotiate terms, subject to •the Chancellor’s approval; and an advertisement drawn by the Chancellor was extensively circulated. Then followed, from time to time, the leases which have been made. .

Thus, the estate unavoidably remained from 1843 to 1862, without such permanent improvements as were necessary to render it more productive. The rents, when the Trustee took charge of the estate, were about $500 in all, including some rented lots at Milford, which were afterwards sold under the decree of the Court, to pay legacies. In the later years of this period, che rentals were raised so as to yield some $700. The annual compensation allowed to the Trustee, was $200; nor can this be considered unreasonable. The taxes amounted then, to about $100, in later years, to about $140. Here was an annual deduction of at least $300. Besides, were occasional expenses, caused by constant litigations, which I have not deemed it necessary to foot up, The surplus rents were needed for repairs, to save the estate from utter ruin, and were so applied. Any better disposition of them can hardly be suggested, and it must be conceded that the failure of the trust estate to yield a revenue up to 1862, is due, not to a faulty administration of the trust, but to uncontrollable embarrassments. These are very clearly and impressively summed up by the Commission to examine the estate, in 1859.

Since 1862, the system of improvement-leases has been in operation. The lease of the Carmean Farm to Thompson, commenced in January, 1862, of the Reeson Farm to Reedy, in January, 1863, of the Cullentown tract to Geo. Burton, in January, 1863, of the Tanyard farm to the Barkers, in January, 1865, and of the Clark farm to Herring, the Winsmore farm to Anderson, the New Wharf farm to Redden-, and the Jester tract to Causey, in January, 1866, and the Mispillion farms from January, 1869. The rents now received from the whole estate improved and unimproved, amount to $880, out of which the Trustee had, under some of the improvement-leases, stipulated to return certain sums in fertilizers, amounting to $200, leaving, net, $080. In some of these leases the tenants are required, after a portion of their lease has expired, to pay an additional rent, after which time, the rents will amount to $1100. As the tenants under improvement-leases stipulated for taxes, and repairs and-insurances, the estate should not be, henceforth, chargeable for these farms, and, so far, there is an improvement in the rentals which would have resulted in a net revenue, were it not that, in carrying into effect the general order made in January i860 for permanent improvements, the expeditures exceeded the sums realized from the sales of wood-leaves, to the amount of about $1500, which deficiency has fallen upon the income of the estate accruing under the improvement leases, and is thus far absorbing what, otherwise, would be some surplus of annual rents over and above current expenses. And, without .engaging anything for the future, beyond the best efforts this Court can render, I may venture to express the hope that, after the deficiency referred to has been met, the estate will begin to yield a net revenue, which may be applied to the charity contemplated. Certainly it is an object most to be desired, and one with which the Court is in hearty sympathy, that the persons contemplated by the founder of this charity, should speedily realize its benefits. But it must be clearly unreasonable to expect this as yet. The Commissioners, upon actual examination of the estate and consideration of all the embarrassments, thus express themselves, speaking in 1859 before this suit was instituted. “Much time and “ good management will be necessary to such a result. No reasonable “person can expect that the present generation will derive much “benefit from the charity estate. It is reserved for those who come “ after it to reap the benefit of the testator’s bounty. ”

Case Details

Case Name: State v. Fleming

Court Name: New York Court of Chancery

Date Published: Sep 15, 1867

Citation: 3 Del. Ch. 153