Bryan v. Duncan

11 Ga. 67

• Court: Supreme Court of Georgia
• Decided: January 15, 1852
• Docket: No. 12
• Status: Published

Opinion

By the Court.

Warner, J.

delivering the opinion.

On the trial of this cause in the Court below, various exceptions were taken to the rulings of the Court, most of which, must necessarily depend upon the decision of the main and controlling question made by the record.

The great question in the cause is, whether the defendant, George M. Duncan, who was appointed trustee of Mrs. Wallace, of what was supposed to be her separate property, under the last will and testament of Wm. Britton, deceased, and who accepted the trust, is now estopped from setting up a title to the property derived from Mary Wallace, his cestui que trust, and her husband, Richard Wallace, according to the facts disclosed by the record before us ?

[1.] The first question to be settled is, whether that clause of William Britton’s will, under which Mrs. Wallace derives her title to the slave Corboro and her issue, created and vested in her, a separate estate, to which the marital rights of her husband could not, and did not attach, on her intermarriage with him. The clause of the testator’s will, under which Mrs. Mary Wallace claims Corboro and her increase, as separate property, is in thefollowing words: “llend my niece, Mary Edwards, one negro girl and her increase, Corboro, during my niece’s natural life, and at her death, to the lawful issue of her body, and in case my niece Mary should die without issue, or a minor, then it is my will and desire, that this negro girl, Corboro and her issue, should revert to my niece, Nancy, and in like manner, to the lawful issue of her body.”

Whether Mary Edwards (now Mrs. Wallace) took an absolute estate to the negro and her increase, or only a life estate, was not made a question on the trial, and we express no opinion as it regards that point. The question now made for our consideration and judgmeut is, whether a separate estate was created to the property bequeathed to Mrs. Wallace, so as to prevent the marital rights of her husband from attaching to it.

It is insisted by the counsel for the plaintiff in error, that this was a loan of the property by the testator to the legatee; that the title thereto remained in his legal representatives after his death, and that no title vested in Mrs. Wallace. This is certainly a very strange and inconsistent argument, to be urged by the counsel for Mrs. Wallace, who is seeking to make the defendant responsible as her trustee, on the ground, that this identical property is her separate estate, under the will of her father. If no estate to the property vested in her under the will, of course, she had no separate estate in the property.- In our judgment, however, she took at least a life estate in the slave Corboro and her issue. The word lend, as used by the testator in this will, is equivalent to the word give; for the reason, that the testator evinces a clear intention to part with the entire dominion over the property bequeathed. After his death, the property never could have reverted to his executors. A final disposition of it is made by the testator. Hinson and wife vs. Pickett, 1 Hill’s Ch. R. 38. The legatee, then, took at least a life estate in the property bequeathed, and there being no words in the will, creating any separate estate to the property in her, the marital rights of her husband attached thereto, and the same, by operation of law, became hispronerh, and liable for the payment of his debts.

[2.] Taking this view of the estate created by the will of Wm. Britton in Mrs. Wallace, the next point made by the record is, that inasmuch as Duncan was appointed trustee by the Court of Chancery, on the motion of Mrs. Wallace, to protect this particular property, as her separate trust property, and having accepted the trust, he is now estopped from denying that it is her separate trust property; and therefore, he shall not be permitted to show that he has made a bona fide purchase of this property from Richard Wallace, her husband, with the knowledge and consent Mrs. Wallace, his cestui que trust.

Conceding as we do, that in a mere contest between the cestui ( ue trust, and her trustee, for an account of the trust property, without more the trustee could not defend himself from accountability, by showing that some third person had a paramount title to the property in his hands, which he had received as trust property under his appointment, from his cestui que trust; yet, that is not the case made by this record. The record here shows that the property in controversy, was levied upon to satisfy sundry executions obtained against Richard Wallace, in favor of his creditors; thatthe defendant, as the trustee of Mrs. Wallace, prosecuted a claim to that property, as provided by Statute, and during the pendency of that claim, he was advised by his counsel, that it could not be sustained in law, but that the property would be found subject on the trial — the same not being the separate property of Mrs. Wallace, under the will of her uncle. Acting upon this advice of counsel, an arrangement was made between the creditors of Wallace and the defendant, with the consent and approbation of Richard Wallace and his wife, that the defendant should purchase eight of the negroes, and pay the executions with the proceeds, so as to enable Wallace and wife to retain the balance of the negroes. Wallace and wife executed a bill of sale to James E. Duncan, for the negroes, with the knowledge and understanding at the time, that it was for the benefit of the defendant, who wras the actual purchaser of the properly from Wallace and wife. Subsequently, James E. Duncan conveyed the property to the defendant. The Jury have found by their verdict, that the purchase of the eight negroes by the defendant, was a fair and bona fide transaction, and that he has fully accounted for the use of the property whileheheld it as the trustee of Mrs. Wallace. The plaintiffin error makes two points in relation to this branch of the case. First, he insists that the defendant is estopped from settingup his title from Richard Wallace to the property, for the reason, as he alleges, that he received it into his possession as the separate property of Mrs. Wallace. Second, that considering it as the separate property of Mrs. Wallace, the sale of the property by her to the defendant, as her trustee, was void, especially as the sale was made through the intervention of a third person. Now, in relation to the first point, it is quite clear, we think, that the judgment of the Superior Court, appointing the defendant as trustee, and his acceptance of the trust, did not and could not, have prejudiced the rights of Richard Wallace, the husband, or his creditors, who were not parties to that judgment. The mere application, on the part oí Mrs. Wallace, to have a trustee appointed, to protect what she may have supposed was her separate property, and the appointment of such trustee, did not divest the husband of his title to the property, which he acquired by virtue' of his marital rights.

The defendant derives his title to the property, not only from the husband, who was in fact, and in law, the owner of it, to the extent of his wife’s interest; but he also derives his title from Mrs. Wallace, his cestui que trust, which involves the second » proposition contended for at the bar.

[3.] Viewing this as the separate property of Mrs. Wallace, and that she held it sui juris, still it was competent for her, according to the facts stated in this record, to have made the sale of it to the defendant. In Coles vs. Trecothick, Lord Eldon holds, that a trustee may purchase from the cestui que trust, provided there is a distinct and clear contract, ascertained to be such after a jealous and scrupulous examination of all the circumstances, that the cestui que trust intended the trustee should buy; and there is no fraud, no concealment, no advantage taken by the trustee, of information acquired by him, in the character of trustee. 9 Vesey, 246. Hill on Trustees, 537. If this property was the separate property of Mrs. Wallace, as is contended, by virtue of the appointment of the defendant as trustee, she was, as to this separate property, sui juris, and might have disposed of it to the defendant, in the absence of all fraud, concealment, or advantage, on his part. It is true, that Courts of Equity will look with a jealous eye to purchases made by trustees of their cestui que trusts, although the latter may be sui juris, but we are not prepared to hold that such purchases are absolutely void, per se. As to the bill of sale having been made in this case, to James E. Duncan, we have only to say, that it was so made with the knowledge and consent of the alleged cestui que trust. It is not a case in which the instrumentality of a third person is invoked, for the purpose of blinding or deceiving the cestui que trust, without her knowledge, to enable the trustee to acquire the title to the trust property.

According to the facts disclosed by the record before us, neither the law nor the justice of the case, is with the plaintiff in error. The whole effort appears to have been, in the Court below, to exclude the true facts of the case, by relying on the technical doctrine of estoppel, and by the operation of that rule, to make the defendant liable as a trustee for the separate property of Mrs. Wallace, which never was her separate property, but the property of her husband, and liable for the payment of his debts. In other words, after the parties had become satisfied it was not the separate property of Mrs. Wallace, she consented for the defendant to purchase it, and apply the purchase money in payment of her husband’s debts, to which the property was subject, which he has done; and now she seeks to make him account for the property again to her, as her trustee, on the ground that he is estopped from denying that it is her separate property; not that it is in fact her separate property in law, but that the defendant cannot, by a technical rule, be permitted to deny it.

The defendant claimed title to the property by a bona fide purchase from Richard Wallace (in whom was vested the legal title) with the knowledge and consent of Mary Wallace, the alleged cestui que trust, she having joined her husband in making the bill of sale; so that in any view, the defendant has the legal trtleto the property; and in our judgment, from the record before us, the equitable title also. The Court below then, did not err in refusing the instructions asked, in view of the facts of this case, nor in the instructions given to the Jury. Although we might not be willing to indorse all the legal propositions asserted by the Court, without qualification; yet, so far as the same were applicable to the facts of this case, the plaintiff in error has no cause of complaint. From the view which we have taken of this cause, it follows that the bill of sale from Wallace and wife, to James E. Duncan, and from the latter to George M. Duncan, as well as the fi. fias, against Wm. Wallace in favor of his creditors, were competent testimony, and properly admitted in evidence. The receipt from Mary Wallace to the defendant as trustee, while acting as such, was properly admitted in evidence — her handwriting having been first proved.

The evidence of Washington Poe, Esq. was also properly admitted, for the purpose of showing that the defendant acted in good faith in making the purchase of the negroes. It is true, that a party who acts on the advice of cunsel in regard to his legal rights, must act on his own responsibility; yet, in this case' the advice was in accordance with the legal rights of the parties, and the defendant did right in following it. A Court of Equity, as a general rule, will sanction that which it would decree to be done, had the parties been before it.

The copy of the will admitted in evidence, was attached as an exhibit to the complainant’s bill, and admitted by the defandant’s answer, and we think, was properly admitted in evidence to the Jury.

Let the judgment of the Court below be affirmed.