Dickey's Appeal

73 Pa. 218, 1873 Pa. LEXIS 68

• Court: Supreme Court of Pennsylvania
• Decided: March 17, 1873
• Status: Published

Opinion

The opinion of the court was delivered, March 17th 1873, by

Sharswood, J.

It will be necessary to inquire and determine what was the relation sustained by the defendant to the plaintiffs on May 16th 1860, when the trustees under the will of Elliott Cresson, by deed of that date conveyed to him the Clinton county lands. Eor this purpose it will not be required that we should enter upon a full examination and discussion of all the evidence which is spread upon the paper-books. A few indisputable, and indeed, undisputed facts, have led a majority of the court to the conclusion that Dr. Dickey did then occupy a confidential relation to the plaintiff; that he had that “ community of interest,” which, in the language of Chief Justice Lewis(1 Casey 272), “produces community of duty.”

By the will of Elliott Cresson the lands in Clinton county had been devised to certain gentlemen as trustees “ for the foundation and support of a home for aged, infirm, or invalid gentlemen and merchants.” After giving many legacies, he bequeathed the residue of his estate in equal proportions to the children of Warder Cresson, his brother, then living. He left surviving him as heirs at law, his mother, Mary Cresson, his brother, Warder Cresson, and two sisters, Annabella Cresson, and Sarah E. Dickey, the wife of the defendant. Mary Cresson, Annabella Cresson, and Warder Cresson, are dead, leaving as the heirs at law of Elliott Cresson, the children of Warder, who are plaintiffs, and Sarah E. Dickey.

Elliott Cresson died February 21st 1854, and his will was admitted to probate on the twenty-seventh of that month. John E. Cresson, then a citizen of New Jersey, on October 16th 1856, filed a bill in equity in the Circuit Court of the United States for the Eastern District of Pennsylvania, against the executors and trustees, the heirs at law, and the rest of the residuary legatees, charging that the devise to the trustees was invalid, and that by reason thereof, the said lands constituted a part of the residuary estate. The defendant and his wife answered, that they were advised that the devise was invalid, as alleged, but charged that the . testator died intestate as to said lands. According to the report of the master, it seems to have been informally agreed between the parties contesting the validity of the devise, that, if it should be decided to be void, whatever might be their respective rights, Sarah E. Dickey, as the only surviving sister of the testator, should have one-half, and the children of Warder Cresson. should have the other half of the lands. On the 9th of October 1857, the said bill, after argument, was dismissed, the court deciding in favor of the validity of the trust. As far as it appears, the community of interest created by the previous agreement between the .plaintiffs then ended. Warder Cresson was then alive. His . children, the plaintiffs, were not tenants in common, as heirs at law, with the defendant. Mrs. Dickey, however, as heir at law, was a tenant in common with her brother Warder, of whatever title there might be in them to these lands'. It is unnecessary to consider what the effect in equity of a purchase by Dr. Dickey would have been at that time as to Warder Cresson, who, by the express terms of the codicil, was excluded from any benefit in the estate: “ In no event shall any portion of my estate be diverted from the object designated for the benefit of said Warder Cresson.” We may concede that after the decree of the court, Dr. Dickey and his wife were strangers to the plaintiffs, and had no community of interest which could lay the foundation for a relation of confidence. Had Dr. Dickey rested there, he might have purchased the lands for the benefit of his wife exclusively, and having paid his own or her money, no declaration, not supported by a consideration, or under seal, which imports a consideration, whether such declaration had been verbal, or evidenced by writing, would have constituted him a trustee for the plaintiffs. If he had intended, and so communicated to the plaintiffs that he would divide the net proceeds of the sales and lands, after the payment of expenses, if they contributed nothing in time, labor or money, which would constitute a sufficient consideration, it would have been a nude pact not enforceable in equity. What occurred afterwards, however, placed him in a different position. The defendant was not content to accept the decree of' the Circuit Court of the United States against the title which had been set -up in the bill in equity. He assumed to act on behalf of John E. Cresson — the plaintiff in the Circuit Court — and retained counsel to prosecute an appeal to the Supreme Court of the United States. He communicated what he had done to John E. Cresson, by letter dated August 10th 1859. “ I have assumed to pay the necessary charges, and given a fee to Mr. Campbell, and he engages to take an appeal to the Supreme Court of the United States. It may not amount to anything, but in that case you will not have any costs; but if it does, it will be proper to tax you and the rest of the family with their share. The arrangement your Aunt Sarah (Mrs. Dickey) and I agreed to with the attorney, was to unite the claim of her as the legal heir, with all the children of brother Warder as residuary legatees (he being cut off by the will,) and as a just arrangement, to make it without a trial of ownership afterwards. This was done, as I suppose you know, in the previous trial, and I suppose it is best in this.” What had thus been done was ratified by John E. Cresson, acting for himself and the other plaintiffs, by a letter to Dr. Dickey, dated September 1st 1869, in which he said: “I trust that we may be successful in the undertaking; as it would be very unpleasant to us all to have a trial with Aunt Sarah for the ownership of the lands, it is with pleasure we accede to the plan you propose.” Surely here was an agreement founded upon sufficient consideration; the defendant, Dr. Dickey, agreeing to conduct and be at the costs of the appeal in the event of failure, and the plaintiffs agreeing, in consideration thereof, to abandon their claim as residuary legatees, and come in equally with Mrs. Dickey as heirs at law in case of eventual success. Dr. Dickey avers that he afterwards abandoned this appeal, but it is clear that after this agreement he had no right to do so without the consent of the other parties. He had constituted his wife a tenant in common in equity with them of the title, such as it was. Mrs. Dickey, with his consent, might release her own share or interest to the trustees, but Dr. Dickey was, nevertheless, bound to go on with that appeal until he was released by the other parties from the obligation he had assumed with them, and for which they had given value in their release of their rights as residuary legatees. It is entirely immaterial, so far as any question before us is concerned, whether the title they thus set up in opposition to the trustees of the will, was good or bad, was perfect or worthless; whether, if the trust was bad, the heirs at law would have the lands, or the residuary legatees. The relation of Mrs. Dickey, and as standing in her shoes, of Dr. Dickey, to the other parties, cannot be affected by that consideration. That Dr. Dickey, then considered that he stood in this relation to the plaintiffs, is manifest, we think, from the terms of his formal proposal in writing made to the trustees for the purchase. He says that he is willing, “on behalf of the heirs at law of Mr. Cresson,” to pay the amount at which they were appraised by Messrs. P. M. Price and Stone, and he subscribes his name “for Sarah E. Cresson, his wife, and residuary legatees mentioned in the will of Elliott Cresson.” If then Mrs. Dickey was in equity a tenant in common with the plaintiffs, any purchase made by her, or by her husband in her behalf, of the outstanding title in the trustees, must enure to the benefit of her co-tenants at their election. In Smiley v. Dixon, 1 Penna. R. 441, Huston, J., refers to the case of Legget v. Bechtol, which is not reported, in which it was decided by this court that two tenants in common, who had heard of an adverse title, and agreed to join in defence against it, were bound to deal fairly with each other, and that one of them, who purchased the adverse title, must hold it for the other, upon that other paying his proportion of the purchase-money. So in Weaver v. Wible, 1 Casey 270, it was held that a conveyance to one of several tenants in common, or a deed to one of two devisees of the same land, shall enure to the benefit of all who come in under the same title, and are holding jointly or in common. To the same effect is Lloyd v. Lynch, 4 Casey 419, and Keller v. Auble, 8 P. F. Smith 410. In answer to a letter of John E. Cresson, of May 4th 1860, who, it seems, had heard of the purchase, and wrote to inquire about it, Dr. Dickey, under date of May Í8th 1860, replied as follows: “ The title I took without having your brother associated in it, because the person furnishing the money to purchase, and running the risk, must necessarily have the property in his right as security; and again, your brother cannot give you such security in a contract to the proper execution of his part as one having other property can do, so that the danger is only to myself. I expect to sign a paper to be left with your mother, as representing her children, so soon as I get the deeds recorded, binding myself and heirs, to give your brothers and sisters the one-half of all the net proceeds from the property, and your Aunt Sarah, for our children, the other half, after paying purchase-money, interest and expenses of every kind, which must first come out of all sales of lands and timber.” It will be observed that he made no condition that the plaintiffs should advance' any part of the purchase-money, but distinctly proposed to depend for his reimbursement upon the sales of lands and timber. He stated also in this same letter that he made this purchase of the trustees by way of compromise of the pending appeal by the advice of the counsel whom he had retained for the heirs. “Your lawyer, Mr. Campbell, as well as my own, told me to make any compromise I could with the trustees, as there was everything to fear, if we Went to the Supreme Court, that it would result as the former did, against us.” Whether, therefore, Dr. Dickey be regarded as acting for his wife as tenant in common, and having himself a curtesy estate in her share, or as attorney in fact of the other parties, in prosecuting their appeal, in either view he occupied a confidential relation, and any purchase made by him must be held in equity to enure to them and according to their respective shares. We are therefore of opinion that Dr. Dickey was a trustee, and the decree below that he should account as such was right.

In regard to the questions growing out of the account, we concur with the learned master below upon all points except one. We think Dr. Dickey should be credited with the fair market value of his own lands, which were included in the sale. It is altogether immaterial how Mr. Pardee, the purchaser, regarded it, and whether he viewed the lands in person. This is not the ordinary case of a person executing an express trust, where it may be said that it was the plain duty of the trustee to keep his own lands separate from those of his cestui que trust. Dr. Dickey was not a lawyer, and not acquainted with the doctrines of courts of equity upon the subject of constructive trusts. He was advised by his counsel that he was not a trustee, and the division of opinion upon this bench may at least show that it was not a clear case. He held himself bound in foro consoientice only. It would be a hard measure of equity to visit him with the loss of his own lands or their value, because, supposing himself not legally accountable to any one, he made a lumping sale of his own land with the lands of the cestui que trust. There is no difficulty in separating and distinguishing them, and so far from the Clinton county lands having been injured by this confusion, if we may judge by the testimony of the witnesses as to the actual value of the Clinton county lands, compared with what they were sold for by Dr. Dickey, they were very much benefited. Nor is there any difficulty in determining the value of these lands. The only witness who speaks of it from actual knowledge is Mr. Carskaddon, and he was an entirely competent expert. He says: “ These lands are very favorable specimens, worth from $10 to $15, or $20 an acre.” We lay aside what Dr. Dickey says, as evidently mere conjecture. Taking then $14 as an average for 1676 acres, deducting $3.16 per acre, the amount at which he is already credited^ and crediting Mm with the same proportion on the forfeit of Ward McLean, it will be found, without calculating the precise arithmetical result, that if Dr. Dickey be credited with these sums, the amount due the plaintiffs is somewhat less than that brought out on the first statement of Dr. Dickey, dated December 24th 1866, and offered to be paid by him, namely: $16,274.10. We think the decree below ought to be so modified as to find this amount to be due and payable to the plaintiffs, with such an order as to the costs as will be just and equitable.

And now it is ordered and decreed that the defendant, John M. Dickey, pay to each of the plaintiffs, John E. Cresson, Clement Cresson, Ezra T. Cresson, Annabella McAllister, Emma Porter and Emma J. Cresson, as executors of Jacob Cresson, deceased, the sum of ¡§2712.35 cents, with interest from November 14th 1866; that each party pay Ms own costs in the court below ; that the appeal of the plaintiffs be dismissed at the costs of the appellants, and that the costs of the appeal of John M. Dickey be paid by the appellees.

Williams and Mbrcur, JJ., concurred in the modification of the decree, but would go further and dismiss the bill.