| Vt. | Feb 15, 1826
The opinion of the Court was pronounced by
The question now to be decided, is, whether, upon the whole testimony now presented to the Court on paper, and giving it all the weight the plaintiff can fairly contend for, the hay in question was the property of the plaintiff, to the exclusion of the creditors of Joseph S. Sterne, or whether the same was liable to the attachment of such creditors ?
Other questions are urged in argument. 1st, Whether the plaintiff can sue alone in this case, as executor, others being named who are not joined in the suit ? 2d, Whether he alone can recover, in his right as a trustee, other trustees being named in the will of Thomas Sterne ? It appears by the case, that the plaintiff was the only executor who gave bonds as executor, and our statute cited in argument, settles the point, that no person can act as executor, except such as give bonds. If, therefore, Trask was the sole executor who had acted, or was authorized to act as such, and had the possession and control of the property when it was attached, he may sue alone; nor need he name himself executor, for his lawful possession and his accountability for the property form sufficient title for him to recover in his own name. And, as the property does not appear to have been transferred, nor possession delivered by the executor to the trustees, nor any closing the Settlement of the estate, the fair presumption is, that the plaintiff, if he held at all, held as executor. But 2dly, if he held as trustee, he seems clearly to have held as sole trustee; for there is presented to the Court no evidence whatever of any acceptance of the trust, by any other of the trustees, or any attempt to control the property by them. On the contrary, the long control and care of the plaintiff, solely without the interference of the other trustees named, furnishes a strong presumption, that the others refused to accept the trust. If they refused or neglected to" accept and act as trustees, they are out of the question as it respects this action. They cannot be compelled to accept, and until they do accept, they are not trustees. The law cited, requiring joint trustees to join in a suit concerning their trust estate, means such as are in fact trustees. If, then, we should consider Trask possessing as trus
In returning to what the Court consider to be the main question, it appears, that the hay was in the immediate possession of Joseph S. Sterne, was cut under his care, on the farm on which he lived, and had lived even before the decease of his father, taking the immediate care of the farm and stock. Indeed there is no dispute but the care and use of the property, by Joseph S. Sterne, at and before the attachment, were as if the whole were his own. Thomas Sterne, the father and owner of the property, died in 1816. The mother lived as a part of the family of J. S. Sterne till she died. Since that his wife has deceased, and from that time he and his children compose the family, and the whole produce of the farm and stock have been appropriated to the support of the family, and paying, such debts as were contracted in carrying on the farm, but none for the payment of the antecedent debts of said J. S. Sterne. There is no dispute about these matters. But the plaintiff contends, that all this is in perfect accordance with the directions of the will of Thomas Sterne, the father, and pursuant to the trust therein created. Neither is this disputed. Hence the Court are compelled to decide upon that trust devise and its effect upon the property in question. The devise was of the farm in question, and all the personal estate that should remain, after payment of debts and some small legacies, to the trustees named in trust, for the support of the widow during her life, then for the support of the said Joseph S. Sterne and his wife during his life, and for the support and education of the children of said Joseph S. Sterne by his said wife, and after the decease of said Joseph S. Sterne the trust was to be closed, by a full conveyance to said children of all the property, real and personal, that should remain after the decease of the said Joseph. It appears that the mother and wife of J. S. Sterne deceased some time previous to the attachment of the hay in question, so that during the growth of the hay and the possession of it till and at the attachment, the whole profits expended by the trustees must have been expended for the support of said Joseph, and for the support and education of his said children. But the law bound Joseph S. Sterne to support and educate said children: what, therefore, was expended for their support and education, was virtually expended for the use of said Joseph S. Sterne. All these circumstances concurring, make Joseph S. Sterne, for the time being, sole cestui qui trust of all the property thus placed in the hands of the trustees. Moreover, the care and labour of Joseph S. Sterne were added to produce this property, to cut and secure the hay, and that labour added much to what would otherwise have been its value. Now, can Joseph S. Sterne be cestui qui trust of personal property not exempt by law from attachment, and have the sole visible possession of that property, and add much to its value by his own industry, which, but for this stratagem, might produce some other property for his creditors. And can he hold this
If the trust estate were managed wholly by the trustees, without the assistance of the cestui qui trust, and they were dealing out a daily support merely, the question might be very different. But on recurrence to the account of the plaintiff, as executor, it appears he has suffered Joseph S. Sterne to have the entire management of the trust estate, and delivered him the entire personal estate, except the debts due. The personal estate thus delivered at once, amounted to ^1189,19, besides various sums in cash, &c. for the use of his family, at different times.
As the case is, the officer had a right to attach the property, and the nonsuit must stand, the plaintiff taking nothing by his motion.