49 Tenn. 118 | Tenn. | 1870
delivered tbe opinion of the Court.
The complainant, Martha "Wynne, is the widow of Thomas R. Wrynne, deceased, who departed this life in Lincoln county, in June, 1856, leaving a last will and testament, of which complainant, Willis Gr. Rives, is the surviving executor; and leaving two children, the defendants, Harriet and Catharine, who, with their mother, Martha, are the only legatees of said last will and testament. In the will there was a bequest of a slave named Jim, to complainant, Martha, for life, with remainder to defendants, Harriet and Catharine. ' The complainants filed their bill, making the said Harriet and Catharine, with their regular guardian, John B. Warren, defendants, and representing that it would be to the manifest advantage of both the life estate and the estate in remainder, that said slave, Jim, should be sold, and the proceeds invested in a young negro woman, and praying for such sale and investment, or for the exchange of said negro, Jim, for a negro woman, or woman and child, as might be deemed most proper and expedient. Upon a reference to the Clerk and Master to take proof upon the subject, that officer reported favorably, and recommended the appointment of a Commissioner to carry out the object of the complainant. The defendants, William B. Beattie and Daniel J. "Whit1 tington, were, by the decree of the Court, appointed Commissioners to effect said sale or exchange at ■ the Feb
At the February Term, 1860, the defendants reported that they had found it impracticable to exchange said negro boy, Jim, for a woman or woman and child, and that they had sold the negro boy for one thousand dol
The complainants excepted to the report:
1. Because it does not show that the trustees used proper diligence in collecting the said j>urchase money from the purchaser of said slave.
2. It does not appear from said report, that they made any effort to invest the same as directed by the Court, after' its collection.
3. That they were not authorized to loan said money.
4. That they did not demand and receive security from McDonald & Kelso, the borrowers of said fond.
The exceptions were sustained, and the parties were ordered • to amend their report, and show what kind of money was paid by the purchaser to McDonald as acting Clerk and Master, and what kind of money they loaned McDonald & Kelso.
At the February Term, 1868, an amended and supplemental report was made, in which it is stated, as a reason for indulging the purchaser of the negro, that they did so at the request of the complainant, Martha, to
To this report there Avere tAVO exceptions: 1. Because they had no authority from this Court to loan said
The decree of the Court disallows these exceptions, confirms the report, and proceeds to recite that, “it appearing to the Court that the Commissioners could not carry out the decree, after due diligence, in consequence of the high price of negro women, and because it was imprudent to do so, and that they had loaned the money to McDonald & Kelso, without any authority from the Court; but under the facts stated in said report, the Court is satisfied that they acted in good faith, and did what they believed the best for the parties; it is therefore ordered, adjudged and decreed, that said Commissioners are not liable for the said sum of $1,043.35, and orders the bill to be dismissed at the cost of Commissioners; and it is further ordered, that said Commissioners may reimburse themselves for said costs out of any moneys that they may collect of Kelso & McDonald in the suits they are now prosecuting against them on these claims; and that, as it appears to the Court, that they have a judgment against Henry Kelso, and have his land attached, that at the sale of said land, they may bid said debt on the same, or do any other lawful act to collect the money on said judgment.” Prom this decree the complainant, Martha, has appealed to this Court.
We have thought it necessary to refer thus at length to the facts of this case, that the exact relation of these parties to the trust in question may be understood, and that the doctrines of the law which govern the case may be fitly illustrated.
The second proposition is, that if the country was in such a state of disturbance and distraction that these parties were unwilling to keep the fund about them, because they apprehended its depreciation, and they deemed it imprudent, even if practicable, to invest the funds as directed by the Court, the instincts of a common prudence would seem to have dictated a wiser course than a loan of the whole fund to a trading firm without security.
A Court of Chancery cannot overlook these salient points, in adjudging the equities of these parties. It is a familiar remark of Lord Hardwicke, that “the doctrines of the law which govern trustees should not be laid down with a strictness to strike terror into mankind acting for the benefit of others, and not for their own; and that as a trust is an office necessary in the concerns between man and man, and which, if faithfully discharged, is attended by no small degree of trouble and anxiety, it is an act of great kindness to accept it.” We have felt the force of this observation in the consideration of this case. As far as the record acquaints us with the motives of these parties, we are not permitted to ascribe to them any but the most honorable intentions.
But yet we have, in this case, the crcissa negligentia
In England, the lending of trust moneys, on anything less than the real security, is, even at this late day, seldom sanctioned by a Court of Chancery. In regard to the money of persons under disability, the very fact of lending upon mere personal security was considered a conversion of the fund. “It was never heard of,” said Lord Kenyon, “that a trustee could lend an infant’s money on private security. This is a rule,” said he, “that should be rung in the ears of every person who acts in the character of a trustee; for an act may very. probably be
In the case before us, money was loaned in the midst of uncertain and revolutionary times, in positive disregard of the orders of a court, and without any security whatever, either real or personal. A court of law could' scarcely hesitate to pronounce such a course of conduct a conversion of the fund; and a court of equity, which, Lord Coke says, is but a just correction of the law, will not.
The decree of the Chancellor is reversed, and a decree will be entered here in accordance with the principles announced in this opinion.