Kenaday v. Edwards

Mary E. Macpherson, by clause 6 of her last will and testament, gave, devised, and bequeathed to her nephews, Chapman Maupin and Robert W. Maupin, of Virginia, in fee-simple, lot 511, with the improvements thereon, on F street, between Fifth and Sixth streets, in the city of Washington, to be held (using the words of the will) 'by them, and the survivor of them, and by such person or persons as may be appointed to execute the trusts declared by this, my will, by the last will and testament of such survivor, or by other instrument or writing executed for that purpose by such survivor; but in trust, nevertheless, to manage and control the same, and to take the rents, profits, and income thence arising, and to pay the one-half of the net amount received from such rents, profits, and income monthly, quarterly, half-yearly, or yearly, according to the discretion of my said trustees, to my daughter, Susan W. Edwards, wife of John S. Edwards, for and during her natural life, to her own sole and separate use, free from the control of her present or any future husband, and from responsibility for his debts or engagements; it being my design that the income thus provided for my said daughter shall not be assigned, disposed of, or pledged in advance, or by way of anticipation, but shall be employed to supply her current wants.'

Upon the death of said Susan W. Edwards, the above moiety of net income, profits, and rents was, by clause 7, to be invested by the trustees, and held by them in trust for the sole and separate use of the testator's granddaughter Susan W. Edwards during her life; and upon her death that moiety, with its accumulations, was to be distributed by the trustees among the children and the surviving descendants of the children of the granddaughter per stirpes. If the granddaughter died without children or descendents living at her death, this moiety and its accumulations were to belong to the testators great-granddaughter, Alice Tyler, subject to certain conditions, which need not be here stated.

The remaining moiety of the net income, rents, and profits of the property was, by clause 8, devised to the same trustees, in trust for the sole and separate use of the testators great-granddaughter, Alice Tyler, with power to invest such income, rents, and profits as in their best judgment was proper, and with authority to her, by last will, to appoint the said moiety and its accumulations to and among her children and their descendents surviving her, in such proportions as she might think fit. If she died without making a will, then the property was to be distributed among her children and their surviving descendants in fee-simple and per stirpes. In case she died without children or surviving decendants of such children, then the net income, rents, and profits of the estate were to go to her mother, Mary M. Tyler, a granddaughter of the testator during her life, and upon the death of the latter the next of kin of Alice Tyler were to take the estate and its accumulations.

The will further provided: 'I give, devise, and bequeath all my other property whereof I may die seized, possessed, or entitled, of whatsoever kind, real, personal, or mixed, * * * unto the said Chapman Maupin, Robert W. Maupin, and the survivor of them, and such person or persons as may be appointed to execute the trusts of this, my will, by the last will and testament of such survivor, or by other instrument of writing executed for that purpose by such survivor, in trust, to hold the same for the purposes and upon the trusts herein before declared in the sixth, seventh, and eighth clauses of this, my will, in respect to the real estate andt he accumulations therein named; and I do hereby confer upon my said trustees full power and authority, at his or their discretion, from time to time to sell, by public or private sale, and to convey to the purchaser or purchasers, all or any part of the trust property in this will devised and bequeathed to my said trustees, and to receive, grant acquittance for, and reinvest, the proceeds of such sales; and I do expressly relieve purchasers of such property from the obligation to see to the application of the purchase money.'

Robert W. Maupin died in 1876, leaving Chapman Maupin the sole surviving trustee.

Chapman Maupin having expressed a desire to surrender his trust, the present suit was brought in the court below by Susan W. Edwards, widow, and by Alice Tyler, by her next friend, for an accounting in respect to the rents and profits of the trust-estate, and for the appointment by the court of a new trustee. After answer by the surviving trustee, the cause was referred to an auditor for the statement of the accounts. The report of the auditor, showing the amounts in the hands of the trustee to be accounted for, was approved. And it was adjudged by the court, March 29, 1882, that the fee-simple estate in the lands devised by the will of Mary E. Macpherson to Chapman Maupin and Robert Maupin, upon certain trusts therein declared, 'be, and the same is hereby, taken out of the said Chapman Maupin, the survivor of the said co-trustees, and vested in James B. Green, of the city of Baltimore, together with all the rights, powers, duties, and obligations incident thereto under the said last will and testament; and it is further adjudged, ordered, and decreed that all the trusts vested by the said will in the said co-trustees, and surviving to the said Chapman Maupin, be, and they are hereby, abrogated and repealed as to him, and conferred upon the said James B. Green, subject to the terms of the said last will and testament, and that the retiring trustee pay over and deliver to his successor hereby appointed all money, books, papers, and other property belonging or relating to the said trust-estate.

'And it is further adjudged, ordered, and decreed that the said James B. Green, trustee, as herein provided, shall file with this court, before, any sale of the said real estate under the powers contained in the said will, a bond in the sum of eight thousand dollars, with a surety or sureties, to be approved by this court, for the faithful performance of his duty in connection with the said sale, and that he shall at all times be subject to the control and order of this court in matters touching the trust, and that the costs of this proceeding are payable out of the principal of the trust-estate.'

It having been suggested to Chapman Maupin-presumably by Green-that the decree in this cause could not be fully carried into effect without a conveyance by him of the trust property, with all the powers of the surviving trustee, to his successor, he executed, March 3, 1888, to Green a deed granting and assigning to him and to his successors all the grantor's right, title, and estate in and to the property devised to the grantor by the will of Mary E. Macpherson, 'in trust for the uses and purposes set out in said will, and coupled with all the powers thereby conferred on the trustees therein named.'

On the 7th of March, 1888, Green, as trustee, reported, in this cause, a sale he had made, through agents, on the 31st of January, 1888, to A. M. Kenaday, of the lot and improvements on F street for $11,000 in cash, to be paid on the ratification of the sale. While he expressed a belief that his powers under the will were sufficient to enable him to execute a valid deed to the purchaser, he was unwilling to do so without the approval of the court. The sale was thereupon, on the day this report was made, ratified and confirmed by the court; but, so far as the record shows, without notice of the sale, or of the above application to the court, being given to either of the present plaintiffs, or to any oner epresenting them.

Green and Kenaday, upon the petition of the plaintiffs, were required, March 17, 1888, to show cause, within a time named, why the order ratifying and confirming the sale to Kenaday should not be set aside as having been improvidently made, the sale itself vacated, and Green removed from the office of trustee. This order was served upon Green, March 19, 1888, and Kenaday filed an affidavit alleging that he purchased in good faith, and insisting upon his right to hold the property. His affidavit shows that the sale was consummated on the 7th of March, 1888, the day on which it was approved by the court.

By an order made March 23, 1888, Green was directed to pay into the registry of the court, on or before March 28, 1888, all the fund, of every kind and description, in his hands as trustee in this cause, and to make answer within one week. He filed an answer on the 29th of March, 1888, in which he denied that the order confirming the sale was improvidently made, or that the price paid for the property was inadequate. He rested his authority to make the sale upon the decree appointing him trustee, and upon the deed made to him by Chapman Maupin.

All the prayers of the petition of the plaintiffs, filed March 17, 1888, were, upon final hearing, denied. From that order the plaintiffs prosecuted an appeal to the general term.

In pursuance of an order of court, Green deposited in its registry one bond of the city of Richmond, Va., numbered 67, and standing in his name as trustee, and also $4,921.22 in cash. The last-named sum was, by an order passed May 23, 1888, directed to be invested in notes secured upon real estate; and, until the court otherwise directed, the interest accruing upon the above bond was directed to be paid to the plaintiffs, or to their authorized attorney, and not to Green.

Notwithstanding these orders, Green collected the interest upon the bond of the city of Richmond, and paid it to brokers in discharge of his personal indebtedness to them. He was therefore ordered, July 5, 1888, forthwith to pay into the registry of the court the whole of the interest upon that bond accrued and payable on the 2d of July, 1888. He subsequently moved to rescind that order; and Kenaday filed his petition, in general term, praying that the appeal from the decree in special term be dismissed for want of jurisdiction.

Upon final hearing in the general term, it was adjudged that the order of March 7, 1888, confirming the sale by Green, be set aside; that the sale itself be vacated; that Green be removed from his office, and denied commissions as trustee; that he be required to pay into the registry of court the full sum received by him as the price of the property referred to in his report, and all other money, stock, certificates of deposit, and evidences of indebtedness received or held by him as trustee under his appointment in this cause; and that the cause be remanded to the court in special term, to ascertain the amount to be paid by him, and to appoint a trustee in his place.

From that decree separate appeals have been prosecuted by Kenaday and Green.

Calderon Carlisle and ''Geo. F. Appleby'', for appellant Kenaday.

C. G. Lee and H. O. Claughton, for appellant Green.

Henry Wise Garnett and Leigh Robinson for appellees.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.