89 Tenn. 63 | Tenn. | 1890
Paul Cicalla died in Memphis October 6, 1878, leaving a will, which was admitted to probate December 2, 1878. B. Vaccaro, the complainant in the first cause named, which, for convenience, will be styled the “ original cause,” was named as executor, and was qualified on the day of the probate. After making several- specific legacies, the will is as follows: “I give, bequeath, and devise to my three children— Delida, Parmelia, and Aurelia — all my property,. of every description whatever, to he equally divided
At the death of the testator Aurelia was about ten years old, Parmelia about five, and Delida about three. ’Aurelia was then in Italy with friends, and has never returned to America. The other two were and have continued in Memphis. The personalty of the estate was not great, but the realty was quite valuable. The bond as exec■utor was given to cover the personalty only.
The original bill was filed April 2, 1879. It recites that complainant, the executor, had filed his inventory and report of sales, and had made his first settlement as executor in the Probate Court. The ' record of the Probate Court on file shows that this first settlement was made March 28, 1879, and confirmed July 11, 1879.
The settlement is not embraced in the probate
He then alleges that he reluctantly consented to accept the trust, and did so merely to oblige an old friend and brother Italian. The bill continues as follows: “And to prevent mistakes in the execution of the trusts, and to close all transactions as he goes along in the execution of his duties under the will as executor and trustee, and to have the judgment of the Court as m adjudicata, without waiting for the infant devisees and lega
The prayer is “.that the will be construed, and the complainant instructed as to the proper execution of the trusts devolved on him; that the interest of the several residuary devisees and legatees under the will, and in future accretions of the estate, be defined; that complainant be instructed and directed as to the amounts to be expended on the infant children in their support and education from month to month and year to year; that complainant be allowed to make frequent settlements of his trusts with thé Master of this Court, and have the protection of regular decrees thereon, which shall at all times be binding on said -infants as res adjudicata.”
It will be observed that the complainant does not seem to have auy doubts as to his duties and' powers, or to suggest any difficulties in the will to be construed. The object of the bill seems to have been to have the whole administration in the Chancery Court, in order that complainant might have “the protection of regular decrees,” which he was advised would always be binding on the infants. His object seems to have been to close every thing behind him, and this object is very candidly stated.
The infants were brought into Court as defendants, and a guardian ad litem appointed for them, lie filed a formal answer, raising no question as to the propriety of the suit. No order was made
June 27, 1879, the first settlement as trustee in the management of the real estate was filed. This does not embrace any account of the personalty. ITp to this period it appears that complainant had intended to make a distinction between his duties as executor and as trustee; for he says, in a deposition given in support of this first settlement, that he had made a partial settlement as executor in the Probate Court, and would make a final settlement therein as soon as practicable. But no such final settlement was made, and - the whole administration was transferred to the Chancery
On December 24, 1887, the three infants, by their next friend, Peter Sanguineti, a resident of Italy, who also claims to he the guardian, in Italy of the children — they having property there — filed an original hill attacking the management of the estate by Vaccaro, and complaining specially of the allowance of $240 per annum -for the care of -the persons of the infants, and of the annual allowance for attorney’s fees, and also of the costs of the Court proceedings, claiming that they were unnecessary. The bill also prayed for the appointment of a guardian of the infants, and that . after the appointment the accounts and settlements of Vaccaro should be examined and corrected, and that he should be required to give bond as executor or trustee sufficient to cover the large amount in his hands arising from rents and the sales of real estate. The bill also prayed that Sanguineti, the Italian guardian, should he permitted to remove the resident infants to Italy, the domicile of their sister. It also charged that Vaccaro was using the money of the estate in the business of the firm of which he is a member. The oath of
After the filing of this bill the seventh settlement was filed and confirmed without exception. On December 21, 1888, a motion for the appointment of a guardian made on the bill of the infants was overruled, with leave to renew the application in the future. In the order overruling this motion Vaccaro was required to give bond as executor and trustee in the sum of $40,000, with which order he at once complied; and the Chancellor, also in the same decree, ordered that the suit of the infants should be prosecuted with diligence, in order that a full investigation of the charges might be had. The eighth settlement was filed March 29, 1889. The Master reported thereon, and exceptions were filed by both sides. On September 27, 1889, an amended bill, was filed on behalf of the infants, repeating the charges of their original bill, and seeking more distinctly to surcharge and falsify the settlements of Vaccaro.
The two causes were heard together on November 15, 1889, and, by order of the Chancellor, consolidated. The decree was that the Court had jurisdiction to entertain the original bill, but that the decrees made confirming the settlements are only prima fade correct,' and subject to be attacked and shown incorrect by the bill of the infants. The decree will be further referred to only as to the points now controverted — viz., the allowance of
The only assignments deemed necessary to be noticed, and those relied on in the argument of the cause in this Court, are as follows: That the Chancellor erred in holding the settlements only prima facie evidence of the correctness of the accounts, because, being confirmed by decrees of Court, infants are bound by them as well as persons sui juris, and also because the Chancellor cannot at one term set aside interlocutory decrees made at former terms. Next, that, if the settlements can be re-opened, there was error in setting aside the allowance to the trustee for care of the persons of the infants, and for attorney's fees, and in charging Vaccaro with interest; and, lastly, that there was error in ordering the appointment of a guardian, the will giving Vaccaro control of the property, if not of the persons, of the infants until marriage or arrival at age. We now proceed to dispose of these assignments of error in the order named.
The Chancellor held that the Court had jurisdiction of the cause. It cannot be doubted that a Court of Chancery has jurisdiction of trusts, and of the management of trust estates. 3 Pom. Ecp Jur., 114, 115.
But the objection which seems to have been made on the hearing was that the Court had not jurisdiction, or at least should not entertain jurisdiction, on behalf of a trustee of a plain and un
The decrees made in the original cause confirming the settlements were regularly made inter partes, and must stand 'on the same footing as other de
Counsel for the infants earnestly insist that the cases of McGavock v. Bell, 3 Cold., 517; Livingston v. Noe, 1 Lea, 55; and McCown v. Moores, 12 Lea, 635, are authorities to support the bill of the infants. We do not think so. In the first case the bill was treated as an original bill to-impeach a ’ decree for fraud. In the other cases the bills were bills of review. Here the bill is simply an original bill to surcharge and falsify the settlements confirmed by regular decrees of the Chancery Court. The settlement made by Vac-caro as executor in the Probate Court is only prima fade correct (Code, § 4535), and is therefore subject to the attack of the bill of the-infants; but it cannot be disturbed except on clear and satisfactory evidence. Matlock v. Rice, 6 Heis., 33. There is no evidence in the record
But, although the decrees of the Chancery Court in the original cause cannot be re-opened on the bill of the infants, they are before this Court for review on the appeal granted to complainant in that cause. True, the appeal was not a matter of right; but an appeal granted by the Chancellor,- under § 3874 of the Code, from a decree determining the principles involved, and ordering an account, brings up the whole record for review, just as an appeal from a final decree. Bomar v. Hagler, 7 Lea, 85. The other errors assigned must therefore he examined on the appeal from the decree in the original cause.
¥e think the allowance made to the trustee for the management of the property is sufficient to compensate him for the care of the persons of the infants. The reference ordered by the Chancellor to ascertain what amount should he allowed will not be renewed. We agree with the Chancellor that no credit should he given the trustee for attorney’s fees for services in this litigation. The will of Cicalla is very clear, and needed no construction, and the powers of the executor and trustee are ample and clearly defined. He could have made sales and investments in his discretion, without the decrees of the Court, and the necessity for administering the trusts in chancery does not appear.
We think, therefore, that the hill was improv
But the decree goes too far in disallowing all credits for counsel fees in the settlement made in the Probate Court. A credit of $250 is given for attorney’s fees. We have already determined that this cannot be- disturbed; and the proof show’s $175 paid to the attorney for . services in other matters and suits. There is nothing to impeach the credit given for that amount, and it also will be allowed. The trust devolving on this testamentary trustee has been continuing for nearly twelve years, and is to continue till the marriage or arrival at age of testator’s children. The property is valuable. It therefore seems reasonable that the trustee should have the benefit of counsel to advise him, and we think he should be allowed credit for $500 for counsel fees in addition to the amounts above named.. He will therefore be credited with these three amounts. The Chancellor will determine this • question in the future.
The final question is as to the appointment of a guardian. The testator selected Mr. Vaccaro to hold the property for his children till their marriage or arrival at age. There can be no doubt as to this. Then the property cannot be taken from his custody unless a breach of trust, or tendency thereto, is shown. Bowling v. Scales, 2 Tenn. Ch., 63; Kerr v. White, 9 Bax., 161.
There appears no' danger to this fund, especially since the Chancellor has required the trustee to execute bond with security, in the sum of $40,000, for its protection. The custody of the property must therefore remain with the trustee. This trust, it is true, does not embrace the persons of the infants. Vaccaro is not a testamentary guardian, and has never claimed to be so by qualifying
The result is that the decree will be modified' as indicated in this opinion, and is in other respects affirmed. The two causes were properly consolidated, and will hereafter be treated as one. The costs of the Court below already accrued will be paid as the Chancellor directed, and hereafter to accrue as he may direct. One-half of the costs of this Court will be paid out of the trust fund, and one-half by 13. Yaccaro individually. The cause will be remanded, in order that the decree as modified may be canned out and the trust estate finally settled.
"While concurring fully in the principle an