Blake v. Hawkins

APPEAL from the Circuit Court of the United States for the Eastern District of North Carolina.

George Pollock, who was seised and possessed of a large estate, consisting of lands, slaves, and personal effects, died in 1839. He devised and bequeathed it all to his sister Frances, wife of John Devereux, by whom she had three children, Thomas P., George, and Frances Ann who intermarried with Leonidas Polk. George died leaving his children Elizabeth and Georgia surviving him, the former of whom is the wife of Grinfill Blake, and the latter of John Townsend.

On July 3, 1839, John Devereux and Frances his wife conveyed to Thomas P. Devereux in fee the real estate so devised subject, however, to charges as follows:--

'First, that the said Thomas P. Devereux, his heirs and assigns, shall, on the first day of March in each and every year during the life of the said Frances Devereux, pay to the said Frances, into her own hands, or according to her own order, and to her sole and separate use, and subject to her own disposal, as if she were a feme sole and unmarried, the yearly sum of $3,000.'

'Thirdly, that the said Thomas P. Devereux, his heirs or assigns, shall invest for, or pay to, the said Frances, at such times, in such proportions, and in such manner and form as she shall direct and require, to and for her own sole and separate use, and subject to her own disposal by will, deed, or writings in nature thereof, or otherwise, to all intents and purposes (notwithstanding her coverture) as if she were a feme sole and unmarried, the sum of $50,000; but if the said sum of money, or any part thereof, shall remain unpaid, or shall not be invested during her life, and if the said Frances shall not by deed, or will, or writing in nature thereof, or by some other act give, grant, dispose, or direct any payment, investment, or application of the same, then the said sum of money, or so much thereof as shall remain not paid, given, granted, disposed, or directed to be invested, paid, or applied, shall be considered as lapsing, and the charge therefor as extinguished for the benefit of the said Thomas.'On the same day John Devereux also conveyed to said Thomas the personalty bequeathed by said Pollock.

John Devereux died in 1844, and in 1845 his widow executed a 'deed of explanation,' which, after referring to that of July 3, 1839, is as follows:--

'And whereas in and by the same the sum of $50,000 was secured to the said Frances, together with an annuity of $3,000; and whereas the annuity was by the said Frances understood to be the interest of the said sum of $50,000, and not in addition thereto, and was to abate as the principal of the said sum was from time to time paid; and whereas doubts have arisen whether the said deed may not bear a contrary construction, and the said annuity be chargeable on the said estate over and above the said $50,000:

Now, these presents are to declare that the true meaning and intent of the part of the said settlement above referred to is, that the sum of $50,000, with the annual interest thereon, was to be hereby reserved to the said Frances, and that the said interest was to cease pro rata as portions of the said principal sum were from time to time paid and discharged, in the same manner as if the same was a debt due by the said estate, and that no annuity except the said interest was intended to be reserved by the said settlement to the said Frances.'

In 1849 she died. Her last will and testament, bearing date Dec. 23, 1847, was, after protracted litigation, admitted to probate in August, 1852. The first and introductory clause is as follows:--

'I, Frances Devereux, of North Carolina,. . . do make and ordain this my last will and testament, intending thereby to execute all powers vested in me, and enacted in any deed or deeds heretofore executed, particularly those powers created in my favor by two certain deeds settling and assuring the estate of my late brother, George Pollock, to my son, Thomas P. Devereux, dated some time in the month of July, in the year of our Lord eighteen hundred and thirty-nine, and executed by my late husband and myself.'

She bequeathed by the first five items five legacies, of $4,000 each, to five several charitable institutions; by the sixth, $500 to her executors for a charitable purpose; by the eighth, $7,500 to Thomas P. Devereux, in trust, to apply the income on the same annually to the payment of certain annuities and charities therein specified; by the twelfth, $500 to S. S. Souter, for a charitable purpose specified. There is no other pecuniary legacy, and no residuary devise or bequest. Thomas P. Devereux and others were appointed executors, but did not qualify as such. Seymour W. Whiting, who had been appointed administrator pendente lite, was, Nov. 16, 1852, appointed administrator cum testamento annexo. Her heirs-at-law and next of kin were her children, Thomas P. and Frances Ann, and her grandchildren, Elizabeth and Georgina. Her property at her death consisted of so much of the aforesaid $50,000 and the annuity of $3,000 per annum as she had not appointed or expended during her lifetime, upwards of sixty negro slaves, the growing crop and farming stock and utensils on her farm in Bertie County in that State, which she was cultivating jointly with a grandson, the household and kitchen furniture at her residence in Raleigh, and some small amount in cash on hand and petty debts due to her.

On March 26, 1859, the complainants, said Elizabeth and Georgina, filed their bill in equity against Thomas P. Devereux, Leonidas Polk and Frances Ann his wife, setting forth the foregoing facts, and further alleging that the said Thomas's pretended renunciation of his executorship, and the appointment of said Whiting as administrator with the will annexed, were as to the complainants wholly void and of no effect; that the said Thomas was accountable to them in equity, as executor, for their share of the assets of the said Frances remaining after the payment of her debts, funeral and testamentary expenses, and the legacies, which last, it was alleged, did not exhaust said assets, but left a large amount in his hands for distribution, to one-third of which they were entitled.

The bill alleges that said Thomas, both before and after his renunciation, intermeddled with her assets, and had the exclusive control and administration thereof; that he took possession of them immediately upon her decease, disposed of them from time to time, and converted them to his own use; especially that on or about the 7th of October, 1852, he, before the appointment of Whiting as administrator with the will annexed, caused fifty-seven slaves belonging to her estate to be appraised and divided between himself and Frances Ann Polk; and that he had then in his possession, or in the possession of his attorney or agents, the original paper or a copy thereof, containing the details of said appraisal and division; that said Whiting was appointed by the procurement of said Thomas and as a mere form, the latter becoming his bondsman; that Whiting, if he acted at all in the administration of said assets, did so entirely under the direction of said Thomas; that he never returned an inventory, nor rendered an account of his administration, and is now deceased; that said Thomas's renunciation was a contrivance to avoid being called to account; that he procured said renunciation to be accepted by a concealment and suppression of the facts above stated; that he purchased up the pecuniary legacies for about half their amount, and claimed for himself the profit derived therefrom; that he paid debts of the testatrix, and converted the residue remaining in his hands to his own use; and that her estate and effects were in fact administered and disposed of by him before the appointment of said Whiting in November, 1852.

The bill prayed for a discovery and for an account.

The defendants, Leonidas Polk and wife, entered an appearance, but neither demurred nor answered. The defendant Thomas filed his answer, admitting the main facts set out in the bill, but denying all fraud, and insisting that if, upon the proper construction of the deeds made to him, it is somewhat doubtful whether the yearly reservation of $3,000 was not intended to be a stipulation for the annual payment of the interest upon the sum of $50,000, such was the intention of said Frances, and if not expressed, it was a mistake in drafting them; that after the death of her husband she executed an instrument declaring such interpretation and intention; and that he is not liable to account for the said sum of $50,000, nor for the interest thereon, because she did not appoint the same by her will, and therefore the same lapsed for his benefit. He refuses to make any discovery, or to render any account of the same. He denies that he is accountable to the complainants as her executor; alleges that he renounced that office; denies that he intermeddled with the assets in any other manner than as is set out in his answer; and in this connection gives an account of his purchase of the pecuniary legacies from the several charitable institutions, and of some of the dealings and accounts between himself and Whiting, while the latter acted as administrator pendente lite, and after he became administrator with the will annexed. He filed other exhibits, the proceedings connected with the caveat of the will, showing his purchase of the legacies, and his conveyance of part of her slaves to the trustee of Frances Ann Polk, all executed before Whiting was appointed. He also filed exhibits showing accounts rendered to him by said Whiting.

The complainants excepted to the sufficiency of the answer, because it failed to set out whether he had not divided fifty-seven slaves of the testatrix between himself and Frances Ann Polk, on the 7th of October, 1852, before Whiting was appointed, and a paper writing evidencing said division; because it failed to set out the disposition made of the $50,000 fund and the $3,000 annuity; because it did not set out the tenor and contents of certain paper writings, in reference to the management of that fund, which he admitted he had obtained from Whiting.

He thereupon further answered, refusing to account for the $50,000 charge and the $3,000 annuity, and to disclose the contents of the paper writings received from Whiting, because they referred to the management of the $50,000 charge; but he exhibited the paper writing evidencing the division of the fifty-seven slaves between himself and Frances Ann Polk.

The plaintiffs filed their replication at the November Term, 1859, but at the June Term, 1860, withdrew it, at request of said Thomas, who filed an amended answer, and the replication was then refiled.

At the November Term, 1860, no depositions having been taken, the cause was set down for hearing upon the pleadings, exhibits, and proofs.

Thomas P. Devereux having become a bankrupt, that fact was suggested, and William J. Hawkins and George W. Mordecai, his assignees, were made parties defendant.

Said Thomas having died, the suit was revived against R. C. Badger, administrator de bonis non, cum testamento annexo, of Frances Devereux, deceased.

At the June Term, 1869, the court passed an order, referring the case to a master to state an account, 1, of the payments out of the annuity of $3,000, or out of the $50,000 in trust, to or by direction of Mrs. Devereux; 2, of the charitable bequests in the will, and of the sums actually paid in satisfaction or purchase of them; 3, of the balances, if any remaining, of the $3,000 and $50,000, after deducting the sums paid to her, or by her direction, during her life, and in satisfaction of legacies since her death; 4, also of the administration of her estate, showing the amount of assets (excluding balances, if any, of the $3,000 and $50,000), and of the debts paid, and the balance, if any.

At the November Term, 1873, the master filed his report.

At the June Term, 1874, the case having been heard upon the pleadings, exhibits, proofs, order of reference, and report of the master, and the exceptions filed thereto, the court decreed,--

1. That Frances Devereux did not by her last will and testament appoint the fund of $50,000, which, by the deed of July 3, 1839, conveying her lands to Thomas P. Devereux, she had power to charge upon said land, to be part of her general personal estate in the hands of her executors; nor appoint the said fund at all, except so far as it is necessary to resort to the same to pay off the pecuniary legacies bequeathed by her in her said will, after exhausting for that purpose what remains of her general personal assets, after payment of her debts and funeral expenses, and the costs of administering her estate.

2. That 'the deed of explanation,' executed by the said Frances in 1845, was effectual; and that the operation thereof was to reduce the annuity of $3,000 charged upon said lands, in said deed of 1839, proportionably as the said Frances reduced the aforesaid $50,000 by her appointments or outlays, so as to make said annuity, in each and every year, equal to six per cent interest on so much of said fund of $50,000 as remained unappointed or unexpended by the said Frances, in each and every year respectively.

3. That the plaintiffs are not entitled to any account of the said fund of $50,000, except so far as it is necessary to take an account of the same to ascertain the amount of the aforesaid annuity, in each and every year during the life of the said Frances, but that they are entitled to an account of so much of said annuity as remained unexpended in the hands of Thomas P. Devereux at the date of the decease of the said Frances, and also to an account of so much and such parts of the general personal estate of the said Frances, including the negro slaves divided between the said Thomas P. and the defendant, Leonidas Polk, in October, 1852, as came to the hands of the said Thomas P. after the decease of the said Frances; but the said Thomas P. is not liable to account with the plaintiffs generally, as executor of the last will and testament of the said Frances, for all her personal estate; and especially is he not liable to account with them for so much, or such parts, of said personal estate as came into the hands of said Whiting, deceased, to be administered by him, either as administrator pendente lite, or as administrator cum testamento annexo of the said Frances.

4. That in taking the account with the estate of the said Thomas P., now in the hands of the defendants, who are his assignees in bankruptcy, the said assignees are to be credited with the amounts which the said Thomas P. expended in purchasing up the pecuniary legacies bequeathed by the said Frances to the several charitable societies, and the said assignees are not to be credited with the full amount of said legacies, unless or except where the said Thomas P. paid the full amount therefor.

5. That, in taking the account last aforesaid, the master shall regard the paper writing bearing date Oct. 2, 1846, signed by Frances Devereux, and accompanying the master's report, as an exhibit, as a stated account between the said Frances and Thomas P. Devereux, deceased, conclusive of all matters of account between them, both in respect to the $50,000 fund and the $3,000 annuity aforesaid, previous to and including the twenty-second day of June, 1846, excepting such matters of account as are, by the express terms of the said paper writing, saved out of its operation, for future adjustment, by reference or otherwise; ascertaining the balance due by the said Thomas P. to the said Frances, subject to the exceptions and corrections last aforesaid, on the said twenty-second day of June, 1846, to be $29,664.60.

6. That in taking said account the master shall also regard the paper writing made out some time in the latter part of the year 1847, signed by William D. Cooke, and accompanying said report, as an exhibit, as a stated account between the said Frances and Thomas P. Devereux, deceased, conclusive of all matters of account between them, in respect to the $50,000 fund and the $3,000 annuity aforesaid, and all other matters, previous to and including the twenty-first day of June, 1847, saving such matters of account as are, by the note at the foot of said paper writing, expressly excepted out of its operation, for future adjustment, by reference or otherwise; ascertaining the balance due by the said Thomas P. to the said Frances, subject to the exceptions and corrections last aforesaid, on the said twenty-first day of June, 1847, to be $25,036.97.

The complainants having waived a re-reference to the master, the account was forthwith corrected, so as to conform to this decree, and a final decree entered, that the complainants recover $722.14 against the assignees in bankruptcy of T. P. Devereux, deceased; from which decree the complainants appealed to this court, and here assign the following errors:--

The court below erred, because,--

1. Under the circumstances of this case, Thomas. P. Devereux, as the executor of said Frances, was liable to account with the plaintiffs for all her personal assets.

2. Her will was an appointment of the whole of the $50,000 charged upon the land, conveyed to him by deed of July 3, 1839, to be part of her general personal assets in the hands of her executors.

3. The instrument styled 'the deed of explanation,' executed by her in 1845, was ineffectual for any purpose, having no operative words of release or receipt: it was presumptively fraudulent for him, a trustee, to take it from his cestui que trust. It cannot be used even as evidence to correct the alleged mistake in the deed of July 3, 1839; and it in no manner affects the annuity of $3,000, so as to reduce the amount thereof.

4. As executor, he ought to be charged with all arrears of the whole of the $3,000 annuity, created by the deed of July 3, 1839, charged on his land, which were unexpended or unappointed by her at her death, as part of her personal assets in his hands.

5. In taking his account as executor, the paper writing bearing date Oct. 20, 1846, signed by her, which was not pleaded or set up in the answer, ought not to be regarded as a stated account, conclusive of all matters of account between him and her, before and including the 22d of June, 1846, the same being at most but her receipt or admission, affording only evidence of no very great weight, under the circumstances proved before the master, of the matters therein admitted.

6. In taking his account as executor, the paper writing bearing date in the year 1847, signed by William D. Cooke, which was not pleaded nor set up in the answer, ought not to be regarded as a stated account, conclusive of all matters of account between the said Thomas and the said Frances, before and including the twenty-first day of June, 1847, the same being, at most, only an admission by her agent, never intended as a memorial of, nor founded upon, an actual accounting by said Thomas.

Mr. Samuel F. Phillips for the appellants.

Mr. A. S. Merrimon, contra.

MR. JUSTICE STRONG delivered the opinion of the court.