Colburn v. Grant

This is an appeal from a decree of the court of appeals of the District of Columbia, which affirmed a decree of the supreme court of the District dismissing a bill in equity, which had been filed in that court. The complainants were legatees of one Augustus G. P. Colburn, and their trustee, Franklin H. Mackey, against Robert E. Grant, the executor of the estate of George Fitz James Colburn, a deceased trustee of the estate of said Augustus Colburn, for an accounting, it being alleged that there had come into the hands of said trustee and his cotrustee, both of whom were deceased, a large sum of money, namely, $28,000, and that only $5,000 thereof had been accounted for. The codefendants of the defendants' executor were those persons who would be entitled to distribution of his testator's estate. The case was heard upon the pleadings and an agreed statement of facts.

The stipulation of facts was as follows:

'In order to obviate the expense of taking testimony in relation thereto, it is hereby stipulated and agreed that the following are conceded as facts, and that the statements herein may be read and taken in this cause as established.

'That the complainant Franklin H. Mackey, as trustee, was appointed by decree of this court in equity cause No. 18,728, and has qualified as such.

'That the complainants Rollinson Colburn and Edward A. Colburn are the only surviving children of Hervey Colburn, who was a brother to Augustus G. P. Colburn.

'That the complainants Elizabeth F. Colburn, Gertrude H. Colburn, F. Helen Colburn and Louise B. Colburn are the only children of H. Hobart Colburn, a deceased child of the said Hervey Colburn; that said H. Hobart Colburn predeceased the said George Fitz James Colburn and that all the abovenamed parties are now of full age.

'That George Fitz James Colburn died in September, 1897, unmarried and without issue, his wife having died before him, and that all the brothers and sisters of Augustus G. P. Colburn predeceased the said George Fitz James Colburn except P. D. Miranda Kimball, who died on the 22d day of December, 1897.

'That under the will of the said Augustus G. P. Colburn the said George Fitz James Colburn and John W. Taylor were named as trustees, without bond, for the management of the trust portion of said estate, with power to sell the same.

'That the real estate in the city of Newark, state of New Jersey, mentioned in the will of the said Augustus G. P. Colburn, was sold by said trustees shortly after the death of the testator, the net proceeds arising therefrom amounting to $27,000, which was paid part in cash and the remainder in subsequent instalments, the latter instalments being collected by the said Taylor.

'That the said George Fitz James Colburn removed from the city of Newark in the year 1873 to the city of Washington, District of Columbia, where he resided, except for a few months, up to the day of his death.

'That John W. Taylor, one of the said trustees, was a prominent lawyer of the city of Newark at the time of his appointment, and continued so to be up to the date of his death in the year 1893, and that he was regarded by the general public as a man of business integrity at the time of his death by his own hands on November 20, 1893.

'That after the death of the said Taylor it was found that he had squandered many estates under his custody, amongst others the said estate of Augustus G. P. Colburn, except the sum of $5,000, which was under the exclusive control of the said George Fitz James Colburn, and which latter sum of $5,000 has been turned over by the executor of said George Fitz James Colburn to said Franklin H. Mackey, trustee, by order of this court in equity cause 18,728.

'That the said trust estate, except the said sum of $5,000 referred to, was by the said George Fitz James Colburn left solely to the collection, management, and discretion of the said Taylor, who handled said sum without the co-operation, supervision, or knowledge of the said George Fitz James Colburn, the latter only requiring from said Taylor the payment of the income of said estate to him, said George Fitz James Colburn, as provided by said will.

'Upon the death of said Taylor, trustee, the said George Fitz James Colburn, as surviving trustee, made claim against the estate of said Taylor for the amount of the trust fund by him squandered, as aforesaid, and upon said claim of $22,000 he received a dividend of $3,342.45.

'That by papers-writing dated respectively September 6, 9, and 11, 1895, Rev. Edward A. Colburn, Rollinson Colburn, and H. Hobart Colburn released all claim to the said $3,342.45 unto the said George Fitz James Colburn, and that thereupon the said George Fitz James Colburn purchased an annuity for himself, which he enjoyed until his death. Said paper-writing is in the following form: 'I hereby give my full assent that my cousin, George Fitz James Colburn, shall have full right to use the sum of $3,342.45 received by him from his father's estate, should he so have need, and do resign any interest I may have in said sum of $3,342.45 if he so desire to use it.' Originals of above paper to be filed in this suit.'

Mr. Franklin H. Mackey for appellants.

Mr. J. Holdsworth Gordon submitted the case for the appellees.

Mr. Justice Shiras delivered the opinion of the court: