Mitchell v. Moore

APPEAL from the Circuit Court of the United States for the Southern District of Alabama.

In November, 1873, Catharine Moore, by L. D. Moore, her husband and next friend, filed her bill against Daniel Mitchell, her trustee, charging him with neglect in the execution of his trust, and with loss of the fund.

This trust was created by James Mitchell, her father, who, by will, appointed said Daniel and one Baskin his executors, and bequeathed to them a negress and her child, in trust for Catharine. The hire of these was to be paid to her annually; and if the executors should deem it proper to sell the slaves, then the interest on the purchase-money was to be paid annually to her. The fifth item provides, in case she should survive her husband, the slaves were to be delivered to her, or, if they were sold, the purchase-money was to be paid to her.

The will further provides that the executors shall sell the real estate of the testator, the proceeds to be equally distributed among the children named in the will. 'The share of Catharine to be held in trust by my executors, and the interest accruing annually to be paid to Catharine, as specified in the fifth item, and finally disposed of in the same manner as the property directed in the fifth item.'

James Mitchell died in Sumter County, Alabama, in 1856, and immediately thereafter the executors qualified under the will.

The bill avers that there was a large amount due her for the hire of the slaves, and that the executors, on a settlement with the Probate Court, were charged with the sum of $9,204.60, which, divided into shares according to the will, left them indebted to the complainant in the amount of $1,150.54; that they have neglected for the past eleven years to pay interest, and mingled the fund with their own, and used it, to her great loss; that Baskin resides beyond the jurisdiction of the court; and that said Daniel had 'almost if not the exclusive management of the trust and the property created thereby.'

The prayer is that the trust be established, and an account taken of what is due for principal and interest; that the trustees be removed; and that Mitchell 'may be decreed to pay to your oratrix whatever she may be found entitled to under said trust.'

To this is added a prayer for general relief.

An amended bill avers that the executors had sold the slave girl and her child before the late war, and had never accounted for the hire or the purchase-money.

The answer sets forth that said Daniel accepted the trust purely for the accommodation of his sister, the complainant, and by agreement with his father was not to charge any compensation for his services; that he never received or made any claim therefor; and that by this agreement he was not to be charged with any loss in the execution of the trust, if he should manage it as he did his own affairs.

It admits the sale of the negress and her child in July, 1856, for the sum of $1,375.25, and avers that up to 1862 said Daniel accounted annually for the interest thereon; that payment was not subsequently made, as there was no communication during the war between Alabama and Texas, in which latter State his sister then resided; and that the money was loaned out on good security, and was during the war paid to him in Confederate money, then the only currency. It further avers that 'all of the said money, together with a large sum owned by defendant, became valueless and lost to him;' that the complainant's distributive share, $1,150.54, was loaned out on good security, and the interest thereon annually paid up to 1862; and that the amount due on the loan was paid to him in March, 1863, in Confederate currency, which at that time was worth hree and a half for one in United States currency.

A decree was rendered against Mitchell, removing him as trustee, and adjudging that he pay the principal to a new trustee.

Mitchell appealed to this court, assigning for error the ruling of the court below that he was liable for the amount decreed against him, and that the principal amount be paid to a new trustee.

The remaining facts are stated in the opinion of the court.

Mr. Philip Phillips for the appellant.

Mr. Conway Robinson and Mr. Leigh Robinson, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.