13 Pa. 451 | Pa. | 1850
The opinion of the court was delivered by
The moral aspect of this case is unfriendly to • the plaintiff in error : so much so that his able and amiable counsel was constrained earnestly to invoke the cold and freezing point of the court’s judgment.
■ But neither Judges as frigid as iron or ice, nor the judicial atmosphere of Nova Zembla, would save them.
The evidence of it ought to be satisfactory, and scrutinized with care and caution; as all evidence ought to be which affects the property and rights of individuals; because all parol evidence is subject to some uncertainty and mistake. But still if it produce full and conscientious conviction, it must have its effect. That the declarations of Howard, made in the absence of Tritt, were evidence I have no doubt. They were not of themselves adequate to establish the trust, especially they were not sufficient to prove that Tritt had the fund or was liable for it; but were an item of evidence proper to be admitted in connection with other conclusive evidence that he was fairly chargeable with the fund. Thus it was ruled in Brown vs. Dysinger, 1 Rawle 408. That evidence of declarations made by a purchaser at sheriff’s sale was admissible to establish a trust in the person for whom he was bidding.— Now in this case the court instructed the jury that Howard’s declarations were not sufficient alone to charge Tritt with the money, yet if they were satisfied from the other facts, that Tritt had the money, and that it belonged to Howard, that then these declarations were evidence to designate the beneficiary or cestui que trust. And this was right, for if the money was Howard’s he had
And this brings us to the next exception made by the plaintiff, that is, that the cestui que trusts cannot recover in this suit. That there ought to have been administration on the estate of Howard, and his administrator would have been the proper person to sue. But if the trust was established in favor of the plaintiffs below— if Howard did deliver the money and securities to Tritt upon the trust and confidence that it should be paid to the plaintiffs below,
The cestui que trust in Pennsylvania may bring ejectment in his own name: Kennedy vs. Fury, 1 Dall. 72; and where it is necessary for the enjoyment of the fund, dedicated to Mm and Ms use, why may he not sue for it, when the trust is of personalty and is denied ? Otherwise he would have but a crippled remedy, perhaps none. The remedy given by the act of 16th June, 1836, sec. 13, is confined to cases where the right to property or money is claimed by two or more persons in the hands or possession of a person claiming no right of property therein. But here the alleged trustee claimed the right of property in the fund, and denied the trust. How long must the beneficiary wait until admimstration is taken on the estate of the donor; and what security has he that the administrator will acknowledge the trust after recovering the fund. But can the administrator of Howard recover the fund if it was dedicated and given in trust in his life time. In Harrisburg Bank vs. Tyler, 3 Watts 373, it is ruled that a trust will be enforced in favor of the cestui que trust, not only against those who are rightfully possessed of the fund as trustees, but also-against others who have obtained it without consideration. That was an action of assumpsit by the cestui que trust against the bank, who resisted the claims on the ground that it was a creditor of the real owner of the trust fund and had a right to retain. But the action was sustained. In 2 Vernon 368, B, a factor, sold clóth on credit and before the money was paid died, indebted by specialty more than his assets would pay. It was held that the money belonged to the principal, who was entitled to recover, for although at law the right is in the factor, yet in equity he is but a trustee. There is no evidence whatever of any debts against Howard, except what the judge says of a debt due to Bratton of $60, and burial expenses of $42, which he instructs the jury may lessen the damages to that amount. This was no injury, but a benefit to Tritt, and he has no right to complain of it.. If there had been creditors, no doubt they would have made their claims manifest. Indeed there is evidence that there was none. We cannot reverse a judgment upon mere possibilities. Bratton testified that he called on Howard shortly before his death, early in 1847, to pay the note of $60, and that Howard told him to go to Tritt. Soon after Howard died, and Bratton called on Tritt, who told him he had neither money nor effects of Howard, that shortly before his death he had paid him eight hundred dollars, wMch
Howard then must have died in 1847. This suit was brought in 1849, and tried in 1850; yet during the three years no whisper of any creditor but this one of $60, which was allowed, and the funeral expenses. This exception then or allegation in favor of creditors, in possibility, is the last impediment after all others have failed, which Tritt endeavors to throw in the path of justice.
But the law is not a science of obstacles and impediments and obstructions in the way of justice and right; but it is a science which teaches the faculty of removing them.
Even if there were creditors, it would not prevent a recovery, unless they interposed their claims, which they might have done by appearing and interpleading in the suit, through the instrumentality of an administrator on Howard’s estate: Coates vs. Roberts, 4 Rawle 100. But if they neglect to manifest and assert their rights, supposing any creditors to exist, of which we have not the slightest evidence, are the cestui que trusts to be forever postponed? A stronger case than this may be found in Wallace vs. Clingen, 9 Barr, of a recovery in assumpsit against a stakeholder as there called, who had money in Ms hands; although he alleged that he might thereby be exposed to the cross fire of another, who as the stakeholder alleged, might claim the money, and the decision went upon the ground that it was the duty of such person to appear and interplead, or be forever barred.
There is no weight in the point made that the court below erred in not instructing the jury that if the fund was transferred to Tritt with a view to deprive the State of the collateral inheritance tax, the transfer and the trust was void, and the plaintiff could not recover. That matter is settled by Baker and Williamson, 4 Barr, and because, by the statute, the payment of any such tax is to be deducted from the fund, which would therefore be liable in the hands of the cestui que trust. If the State chooses to enter into the arena and contest, as to the creation of the trust being fraudulent, the fund is as safe in the hands of the cestui que trust, as in the hands of the fraudulent trustee.
If they do not choose to make that assertion, the fraudulent trustee cannot do it, as the means of defeating the cestui que trust in this action, and retaining the fund in his own clutches.
The endorsement on the bonds of Tritt in Ms own hand writing were proper evidence on the part of the plaintiff below for the purpose offered, that is, as tending to show that the bonds were in Tritt’s possession. It did not follow that they were conclusive evidence of the fact, but under all the circumstances, they leaned that way, and were relevant and competent for that purpose. The admission of the evidence was only an increment in the
Judgment affirmed.