Opinion
12-13-1906
BROWNING v. STILES et al.
John F. Harned, for complainant Lewis Starr, for defendant Charles Stiles. William Early, for defendant J. W. Moore.
Suit by Josephine C. Browning against Charles Stiles and another, as trustee under the will of Louisa F. Cooper, deceased. Bill dismissed.
John F. Harned, for complainant Lewis Starr, for defendant Charles Stiles. William Early, for defendant J. W. Moore.
LEAMING, V. C. (orally). Louisa F. Cooper died in the year 1891, leaving a last will and testament, which was first probated in Delaware county, Pa. Among the provisions of the will is a clause leaving one share of the estate to her daughter, Mrs. Browning, the complainant in this cause. That provision of the will reads as follows:
"All the rest, residue and remainder of my estate real and personal, which shall include any notes of my children which I shall hold at my death at their face value without interest, I direct to be divided into six equal parts, and I devise and bequeath one of the said parts to each of the following named children: my daughter Louisa F. Cooper and Helen C. Douglass, and my son Francis L. Cooper, and the heirs of each of them, respectively, in the share given to Helen shall be included her note held by me."
"I devise and bequeath one of the remaining shares to Martin V. Bergen, in trust, to hold the same invested and pay over the income derived therefrom to my daughter Josephine C. Browning during her life, and immediately after her death to pay, transfer and convey the said one sixth part to her children."
The last paragraph read from the will is the paragraph under which the complainant in this cause derives an interest in the estate of her mother.
It appears that the complainant's husband owned a property known as the "Cherry Hill Farm," which is the property now in dispute in this case, situated in Camden county, and in the year 1897 that farm was so incumbered, and conditions of such a nature existed, among other things foreclosure being threatened, that it became a source of some concern whether the complainant would not be obliged to lose such rights as she had, as widow, in that farm, and, accordingly, a petition was presented by her to the Delaware county, Pa., court, asking that court to make an order whereby the trustees, under the clause which I have just read from the will of her mother, might purchase the Cherry Hill property and make it a part of the trust estate held for the complainant during her life, and at her death to go to her children, as provided in the clause read from the will.
The petition referred to was dated July 8, 1897, and pursuant to that petition, which was marked "Exhibit C 2" in this cause, an order was made by the court of Delaware county directing or authorizing the trustee to make the purchase of the Cherry Hill farm, and pursuant to that order the trustee purchased the farm in question August 12, 1897, paying for it $8,600.44, taking title in his own name as trustee, and paying in cash $3,600.44 out of the trust funds, and giving a purchase-money mortgage for the remaining part of the purchase money, namely, $5,000. The trustee at that time was, I assume, a substituted trustee under the will. His name was Charles F. Case.
March 10, 1903, defendant John W. Moore was appointed trustee in Delaware county, Pa., under this clause of the will referred to, and subsequently his appointment was made by the Court of Chancery of this state. On December 16, 1903, Mr. Moore, as trustee, made an agreement with Mr. Charles Stiles, another defendant and present owner of the property in question, in which he agreed to sell to Mr. Stiles the property in question for $12,000, subject, however, to the confirmation by this court of the contract of the trustee to sell, and application was accordingly made to this court for confirmation of that agreement and for authority or direction to the trustee to execute the deed pursuant to the agreement made. In that proceeding all of the parties in interest were parties to the record and were before the court either in person or constructively by process duly served, and for some reason, which is now not clearly defined, the bill was dismissed.
We have before us no record of the opinion of the court in that cause, but it is suggested that the reason the court declined to make a decree confirming the agreement of sale was that the court found the application to be one of a trustee who had under the terms of his trusteeship as defined in the will ample power to sell, and it was not therefore in accordance with the accepted practice of the Court of Chancery to relieve a trustee from the responsibility incident to his trust and assume it as a court. That is the rule which governs both the orphans' court and the Court of Chancery in matters of this nature. Where an administrator or a trustee applies to the orphans' court or to the Court of Chancery for instructions as to the performance of his duties, acts which he has power to perform, the court will not ordinarily entertain jurisdiction, unless some other equity is brought before the court to give a clear jurisdiction in the cause. Both the orphans' court and the Court of Chancery stand ready to surcharge after the trustee has acted wrongfully, but seldom stand ready to advise and in advance take upon the court the responsibility which belongs to the fiduciary agent. I assume that to have probably been the ground on which my predecessor in office refused to make the decree sought, and dismissed the bill. I assume that because I find, in reading the clause of the trusteeshipin this will, that there exists no possible doubt of the power of this trustee to make sale.
It is urged, however, upon the part of the complainant, that as to this particular property a different rule should prevail from that which would prevail as to the property coming to the hands of the trustee through other or ordinary channels, the reason assigned being that the order of the court of Delaware county was made in view of an ascertainment by that court that this particular investment was an investment peculiarly desirable under this trust—the order of that court having directed this investment to be made, and the investment having been made pursuant to that order. Therefore, it is urged, this property was held by the trustee under a tenure, or under restrictions, or under conditions of such a nature that the ordinary rules governing the discretion of a trustee touching the disposition of trust assets would not prevail, and, without some order or sanction of the Delaware county court or of this court, the trustee would be deprived of and denied the power of making disposition of this property.
It is admitted that no such order has been made.
I cannot concur with the view of counsel expressed along these lines. I bold that the power of the trustee finds its fountain head in the language of the will creating the trusteeship. It cannot be diminished by any court, and any order that in any way undertakes to trammel, narrow, or embarrass the powers of the trustee given to him as a part of his trust by the terms of the will, will be without effect. All that any court can do is to see that the terms of a will are followed, and no court undertakes to make conditions inconsistent with the terms of a will, and, if any court order can be so read as to appear to have that effect, it will not be so construed, as such construction can have no judicial sanction, because it is outside of the field of judicial intention.
This property therefore stands, as I shall hold, exactly the same as though it had come to the trustee through any ordinary channel of the trust, and the trustee had the power to dispose of this property at private sale, provided always that in doing so he exercised a reasonable judgment in the performance of his trust, as well as that integrity which the performance of any trust requires.
It is perfectly natural that Mrs. Browning should seek to set this sale aside. I entertain for her the utmost respect and sympathy in this matter and in the position she takes. Here is a property which she loves—a property which she has occupied for years as her home, a property that is in every way endeared to her. She wishes to save it for a home if it can be saved, and her natural impulses appropriately impel her to resist this sale if she can successfully resist it. The sympathies of this court to that extent are with her, but this court cannot turn aside from the performance of its plain duties for the recognition of sympathies of that kind. This court is compelled to perform its duties when such duties are clearly defined by the law, and if the evidence in this case fails to show that this trustee has sold this property for less than its market value, and for so much less than its market value as to appear to the court to be clearly an abuse of discretion upon his part, this court has no right or power to interpose and take from the trustee the power given to him by the will and set this sale aside. The discretion exercised by the trustee is the discretion given to him by the testator, and the court cannot take away that discretion so long as it is not abused; nor can the court interpose its judgment in opposition to that of the trustee, unless there is such a gross abuse of discretion upon the part of the trustee that the court is able to say that the trustee has abused his discretion.
It is perfectly manifest that the evidence in this case as to values renders this court utterly powerless to find that this sale was made for such an inadequate price as would give to this court the right or power to set the sale aside. The value of the property, as testified to by the witnesses of the complainant, varies from twenty-odd thousand dollars down to fifteen thousand. The amount for which the property was sold by the trustee was $12,000. The witnesses upon the part of the defense have placed the value of this property variously from $6,000 to $12,000. I think there is some testimony as low as $5,500. To be exact as to figures would require a multiplication of acreage values by the acreage of the tract in question: but, at any rate, all of the witnesses of the defense testified that this property was sold at, not only a reasonable price, but at a high price. The testimony upon values has assumed the condition that testimony almost invariably assumes in cases of this class. It is almost a certainty in judicial investigations, when experts are called in on questions of values, to find two extremes—one a class of witnesses who value property highly, another, a class of witnesses who value it lowly—and there is usually a wide margin between the two, and this court cannot properly disregard the testimony of either of the two classes of witnesses in favor of the other, unless there is before the court something to show that either one or the other class is manifestly mistaken. I have been especially impressed with the testimony of the witnesses for the defense. Their knowledge of the value of this property is derived from sources which give great weight to their testimony. Their intimate knowledge of the property in question and of the sales heretofore made in that vicinity carry convictions which cannot be resisted. It is therefore impossible for this court to conclude, in view of the testimony of the witnesses of the defense, thatthe valuations given by them are not reliable. It would be a finding utterly without justification, if, on the testimony now before the court, it should be adjudged that this property has been sold at an amount grossly below its value.
Upon that branch of the case which attributes to the trustee a connivance or combination with the purchaser or with others whereby a fraud was perpetrated, no extended comment need be made, because no testimony exists that leads this court to believe for a moment that the trustee had any individual interest or any private purpose to serve.
Mr. Stiles, the present owner of the property, the party who purchased from the trustee, testified that he was willing to turn this property over to Mrs. Browning, or to any person named by her, at any time, if there shall be paid to him the money which he has invested in the property, with interest at 5 per cent. This testimony upon the part of Mr. Stiles was given in response to questions of the court and with a view of ascertaining or testing the idea of Mr. Stiles as well as his sincerity with reference to the value to which he had testified. This court manifestly has no power, by reason of the fact that Mr. Stiles is willing to do so, to decree that he shall do so. I have not the slightest doubt, however, that Mr. Stiles is entirely sincere in all that he has testified to, and that, if Mrs. Browning will herself, or through some other person, arrange to fully restore or pay to Mr. Stiles the amount of money which will make him whole in his expenditures, he will be glad to convey this property to her or to any purchaser she shall find. This court has no power, however, to decree that he shall do so.
A decree will be advised dismissing the bill.