Summary
In Herndon v. Pratt, 59 N.C. 327 (333-334), Pearson, C. J., speaking to the subject says: "The principle, that when the statute of limitations is a bar to the trustee, it is also a bar to the cestui que trust for whom he holds the title, and whose right it is his duty to protect, is settled; Wellborn v. Finley, 7 Jones, 228.
Summary of this case from Carswell v. CreswellOpinion
(June Term, 1862.)
1. An administrator durante minoritate is liable for a devastavit to the executor, who qualifies after coming of age, and if such executor abstain for ten years from bringing suit, his cause of action is presumed to have been satisfied, released or abandoned. So that persons having a contingent interest in remainder, which is injured by such devastavit, must look to the executor and not to the administrator durante minoritate, or the sureties on his administration bond.
2. No suit, in equity, can be brought to follow slaves, limited in contingent remainder, in the hands of one claiming a present defeasible interest, after the slaves have died; they having died in the lifetime of the first taker.
3. Where slaves, limited in remainder on a contingency, were sold under an execution against one claiming a present, absolute interest, it was Held, that the purchaser under such execution, who took possession and held them for more than three years got a title by the statute of limitations.
4. Where the statute of limitations is a bar to a trustee, it is also a bar to the cestui que trust, for whom he holds the title.
CAUSE removed from the Court of Equity of ORANGE.
Joseph Dickson, of the county of Orange, died in 1834, having made his last will and testament; among the bequests, in which will, is the following: "I give and bequeath to my respective friends, Hugh Waddell, Robert W. Dickson, and Priestly H. Mangum, attorneys at law, and to the survivors of them, the executors and administrators of the survivor, in trust, one negro woman, named Coelia, one negro woman, Milly, one negro boy, named Harry, one boy, named Jackson, one negro fellow, named Davie, one negro boy, named Prince, the land and premises where I now live, with all my stock, etc., to be applied to the maintenance and support of my daughter, Julia Neville Dickson, and my grandson, Robert William Dickson, until he arrives at mature age, in such manner and in such way as they, in their discretion, may deem most suitable to their circumstances, and it is my will and desire, that on the death of my daughter, Julia N. Dickson, the said trustee, or survivor of them, or the executors or administrators of the survivor of them, do give all my estate, hereby given to them, in trust, for the maintenance and support of my said daughter Julia N. Dickson, to my grandson, Robert Wm. Dickson, hereinbefore mentioned." And by a codicil to said will, he bequeathed as follows: "If Robert Wm. Dickson should die before my daughter, Julia N. Dickson, then the property I will him to go to my daughter, Mary M. Herndon, and at her death, to be equally divided between her children and Mary Ann Dickson and Caroline Dickson, now the wife of Joseph B. Marcom." Hugh Waddell, P. H. Mangum, and the said Robert Wm. Dickson were appointed executors as well as trustees to this will, of whom, the last mentioned, was under age at the time of the death of (329) the testator, and the other two, Messrs. Waddell and Mangum, renounced the office of executor, formally, and refused entirely to act as trustee; whereupon, at May Term, 1834, of Orange County Court, the said Julia N. Dickson was appointed administratrix, with the will annexed, during the minority of Robert W. Dickson; but at February Term, 1836, of that county court, the latter having become of age, came into court and qualified as executor, under the will. The said Julia N. Dickson, on being appointed, instead of giving a bond, conditioned to discharge the office of administratrix cum testamento annexo durante minoritate, gave a bond as administratrix generally, and a printed form, applicable to the latter office, was filled up by the clerk, through a mistake, and executed by her with the defendants, William N. Pratt and Anderson Clements, as her sureties, in the penal sum of $6,000. The said Pratt and Clements, at the time of becoming such sureties, took a deed of trust from Julia Dickson, embracing most of the slaves, bequeathed as above, for their indemnity. The said Julia took possession of the land, negroes and other property, amounting, in value, to $3,000. Shortly afterwards, she married one Samuel Merritt, a very dissolute and wasteful man, and although he entered into marriage articles not to sell any of the property of his wife, without her consent and that of R. W. Dickson, he and she together sold and wasted most of the personal estate; several of the slaves and the land were levied on by executions against Merritt, and sold to divers persons, among which, a slave, by the name of Madison or Bob, was, in 1836, sold to the defendant, David George, who took the slave into possession and has held him adversely ever since. Two other slaves, Coelia and her child, Jim, and another slave, were sold about the same time, under an execution in like manner issuing against the said Samuel Merritt, and bought by the defendant, John Hayes, who took the sheriff's title to the same, and has held the possession ever since. Two other slaves, named Harry and Prince, were sold by Robert W. Dickson, the executor, after he qualified, to the defendant, William N. Pratt, who took the same (330) into his possession and held them for several years, but both these slaves died in the lifetime of the said Robert W. Dickson.
The bill is filed by the administrator of Mary M. Herndon and her children, and the administrator of Robert W. Dickson, and the administrator de bonis non of Joseph Dickson and Mary Ann Dickson and Caroline Dickson, alleging that Robert William Dickson died in 1853, leaving the said Julia N. Dickson (now Merritt) surviving, and that by the said codicil, they are entitled to the whole of the said property, with its increase and profits, reserving to the said Julia N. Dickson a subsistence out of the same. They allege that Robert W. Dickson was a weak, drunken, stupid person, entirely incapable of managing property, and that he was a mere instrument in the hands of Merritt and his wife and William N. Pratt; that Pratt encouraged these prodigal habits and dissipated courses in young Dickson, by furnishing him with ardent spirits, and he combined with the others to squander the property while it was in the hands of the administratrix cum. tes. an. and encouraged and stimulated Robert, the executor, to do the same after he qualified; that in fact, Robert W. Dickson never interfered with the property after he qualified, but permitted the said Julia and her husband, Merritt, with the concurrence of the two sureties, Pratt and Clements, to go on and sell and waste the property as they had been doing. The bill alleges that Hayes and George were cognizant of all these doings, and that they purchased the slaves, above stated, with full notice of plaintiffs' equity. They allege that the processes under which these sales took place, were merely pretended, in order to enable these purchasers to get the property in this way. They show that all the said property has gone out of the hands of the said Julia N. Merritt, and that her husband has left her, and both are insolvent; that Robert W. Dickson died without any of the estate in his hands, and utterly insolvent. The prayer is to subject Pratt and Clements, the sureties of Julia N. Dickson, as if the bond had been taken as it was intended; and (331) to make them liable for all the property wasted by Merritt and his wife; also to follow the slaves, Harry and Prince, in the hands of Pratt, and the slave, Madison or Bob, in the hands of David George, and Coelia and Jim and Coelia's increase since the sale, in the hands of Hayes.
Also, that an account may be taken under the direction of this Court, of the whole of the trust fund, with the rents, hires and interest accrued, and that the same may be placed in the hands of a trustee, or in the hands of plaintiffs, on giving bond to support Julia N. Merritt, during her life, and for general relief.
The answers of the defendants, deny all fraud and combination, and insist upon the statute of presumption of satisfaction, and Hayes and George plead and insist upon the statute of limitations.
The clause was set for hearing on bill, and amended bill, and answers, and proofs, and exhibits, and sent to this Court by consent.
Graham and Norwood, for the plaintiff.
J. H. Bryan and Winston, Sr., for the defendants.
1st. The perishable property and the negro which was sold by the administratrix, with the will annexed, durante minoritate:
The bill seeks to charge Pratt and Clements, who were the sureties of the administratrix, on the ground, that the bond which they executed, was, by mistake of the clerk, drawn in a way so as to be inoperative, but in equity, they are held liable to the same extent as they would have been liable at law on the bond, had it been properly filled up, and the administratrix de bonis non cum testamento of the testator charges the sureties of the administratrix with a devastavit, and asks for an account of her administration.
Admit, under the authority of Armstead v. Boseman, 36 N.C. 117, the liability of Pratt and Clements to the same extent as if the bond had been properly filled up, the administrator de bonis non (332) of the testator meets with this difficulty: In 1836, Robert Dickson, one of the executors, attained his age of twenty-one, and qualified. This cause of action in equity, to hold the sureties of the administratrix to an account for any devastavits during his minority, then accrued to him. He lived until 1853, seventeen years, during all of which time it was his duty, and interest, to assert this equity. Pratt and Clements were aware of their liabilities, as is proven by the fact of the deed of trust, which they took for their indemnity, and yet they permit the slaves included in the trust to be otherwise disposed of. These facts, taken in connection with the article of agreement executed between Merritt and his wife, and Robert Dickson, the executor and trustee of Joseph Dickson, seem sufficient to prove, as an open matter of fact, that the cause of action or equity of the executor against the administratrix cum tes. durante minoritate, was satisfied. But suppose the proof should fall short, as an open question of fact, a presumption is raised by the statute law, after the lapse of ten years, that this equity, or cause of action in equity, has been satisfied, released or abandoned.
The reply made on the part of the plaintiffs is not tenable, either as a matter of law or by the proofs on the question of fact. The testator appointed Robert Dickson one of his executors; on arriving at age, he was entitled, and did qualify as executor of his grandfather's will. There was no ground on which the County Court could have refused to permit him to qualify. He was a drunken, trifling young man, but there is no proof tending to show that he was an idiot; in fact, there is no allegation to that effect in the bill; and his being a weak-minded, imbecile young man, addicted to drink, did not authorize the County Court to refuse to permit him to qualify, or at all events does not authorize this Court to treat his appointment as a nullity, and on that ground to grant relief as if the estate of Joseph Dickson had been without a representative, or person capable of suing in its behalf, from 1836 up to the death of Robert Dickson in 1853.
2d. The two negroes sold by the executor, Robert Dickson, to (333) the defendant Pratt:
The equity is put upon the ground of following the trust fund in the hands of a purchaser with notice. Admit the equity, and waive any reference to the difference between a sale by an executor and a sale by a trustee, it has so happened that in point of fact this part of the trust fund has become extinct by the act of God, both of the negroes having died in the lifetime of Robert Dickson. So the contingent limitation over did not vest at his death, because the subject matter of the bequest was not, at that time, in esse. So this equity must fail; there being no allegation or proof that the death of these slaves was caused, or in any way hastened by the fact of their having been sold, and put into the possession of Pratt, by the executor. On the contrary, the proof is, that Pratt treated them as his own property, and took very good care of them. The claim of the plaintiffs to the profits and hires of the two negroes sold to Pratt, accrued while the negroes lived, can not be supported. The negroes belonged to Robert Dickson, absolutely, subject to a limitation over, after his death, to the plaintiffs; so Pratt had a good title during the life of Robert Dickson, and consequently, was entitled to the profits and hires accruing before his title was defeated by the happening of the contingency on which the negroes were limited over; which limitation over, as we have seen, was prevented by the deaths of the negroes, before the happening of the contingency, and so the limitation over failed to take effect by the extinction of the subject of the bequest.
3. The negroes sold under an execution against Merritt and purchased by Hays and George:
This sale was made in 1836, since which time Hays and George have been in the adverse possession of the negroes purchased by them respectively. Under the statute of limitations, this adverse possession gave them the title, not only against Robert Dickson, but also against the persons entitled to the limitation over, for whom he held the title as trustee. The principle, that when the statute of limitations is a bar to the trustee, it is also a bar to the cestui que trust for whom he holds the title, and whose right it is his duty to protect, is settled; (334) Wellborn v. Finley, 52 N.C. 228. In delivering the opinion in that case, the principle was considered so plain that it was deemed unnecessary to cite authorities, and the Court was content to leave the question on the manifest reason of the thing. For statutes of limitation and statutes giving title by adverse possession would be of little or no effect if their operation did not extend to cestuis que trustent, as well as trustees who hold the title for them, and whose duty it is to protect their rights. If, by reason of neglect on the part of the trustees, cestuis que trustent lose the trust fund, their remedy is against the trustees, and if they are irresponsible, it is the misfortune of the cestuis que trustent growing out of the want of forethought on the part of the maker of the trust under whom they claim. The question, however, having been discussed at the bar, we will now refer to Lewin on Trusts, 24 Law Lib., 306, and the cases there cited, which will warrant the conclusion that the doctrine is settled.
On the whole, we have arrived at the conclusion that the persons entitled under the limitation over have no remedy, except against the executor and trustee, Robert Dickson, who is dead — insolvent — and against whose representative no relief is prayed, and they must ascribe their disappointment in losing the benefit which they expected to have realized under the limitation to the fact that the two respectable and competent gentlemen who were named by the testator as executors and trustees, in connection with his grandson, Robert Dickson, refused to qualify as executors or act as trustees, in consequence of which Robert Dickson, on arriving at age, became the only executor and trustee, and proved to be incompetent and faithless.
The allegation of fraud and collusion on the part of Hays and George, with the executor and trustee, Robert Dickson, which is made in order to prevent the application of that statute in respect to the plaintiffs claiming as cestuis que trustent under the limitation over, is not supported by the proofs.
PER CURIAM. Bill dismissed with costs.
Cited: Clayton v. Rose, 87 N.C. 110; Cheatham v. Rowland, 92 N.C. 344; Clayton v. Cagle, 97 N.C. 303; King v. Rhew, 108 N.C. 701, 703; Culp v. Lee, 109 N.C. 679.
Dist.: Academy v. Bank, 101 N.C. 489.
(335)