Hanson v. Worthington

12 Md. 418, 1858 Md. LEXIS 35

• Court: Court of Appeals of Maryland
• Decided: July 22, 1858
• Status: Published

Opinion

Bartol, J.,

delivered the opinion of this court.

The claim for relief of the complainants, Hanson and wife, and Nelson and wife, arises under the followin'? clan™ r-e will of John Tolley Worthington: “I give and bequeath to my grandson, John Tolley Worthington, the sum of ten thousand dollars, to be by him put out at interest on real or personal security, or invested in bank stock, or in stock of the United States, or of the State of M&ryiaud, to be by him held in trust for tlie following uses, intents and purposes, to wit: in trust to apply the dividends, interest, issues and profits arising therefrom, during the life time of my wife, Polly Worthington, to the maintenance and support of my said wife, and if any surplus of such dividends, interest and profits should remain, over and above the maintenance and support of my said wife, then 1 give and bequeath the said sum to my said grandson, John Tolley Worthington! and from and after the death of my said wife, then I give and bequeath the said sum of tent thousand dollars, and the stock and securities in which the same may have been invested or placed, to be equally divided between the children of my daughter Mary, living at the time of the death of my said wife, and the then living descendents of my said daughter Mary, such descendents not taking per capita, but per stirpesj that is, the said descendants of a deceased child to take what their deceased parent, if living, would have been entitled to.”

The testator having given other ten thousand dollars to Richard Johns, in trust, for certain purposes, directs as follows: “Item. — I hereby will and direct that the power of putting out. at interest and investing is stock the aforesaid two sums of ten thousand dollars, mentioned in the two last preceding «lauses of this my will, shall be a continuing power during the requisite continuance of the trust, and that ray grandson, John Tolley Worthington, and my son-in-law, Richard Johns, may, as often as they shall see fit so to do, severally collect the money by them put out at interest, and sell the slock by them ¡purchased as aforesaid, and again, and as often as they deem it expedient so to do, put out the same at interest, or invest m •stock as aforesaid.”

By a-codicil to his will, file testator declares his will and intention to be, that the said provision for his wife shall be Tin fieu and bar of all her right, and thirds, and dower.”

The testator died in 1834, the will and codicils were duly admitted to probate on the 16lh day of September of that year, and on the 3rd da3^ of October, in the same year, lelters testamentary were duly granted thereon to John Tolley Worthington, the grandson, and Richard Johns, they being the executors named in the will. On the 26th day of September 1834, Polly Worthington, the widow, filed her renunciation of (lie bequest made in her behalf, and elected to take her dower and legal share of the estate. She died in the year 1838, and at the time of her death, the children of the testator’s daughter Mary, then living, were the complainants, Anna Maria Hanson and Comfort M. Nelson, and the said John Tolley Worthington, the trustee and executor, and Samuel Worthington, who were the.only descendants of the said testator’s daughter Mary.

The executors proceeded to administer the assets, returned an inventory on the 25lh day of October 1834, and passed several administration accounts, of which the 1st was passed on the 11th da3f of January 1837, the 2nd on the same day, the 3rd on the 14th day of February 1839, the 4th on the 31st day of December 1839, and the 5th and last on the 12th day of May 1846. By those accounts it appears that the whole personal assets of the deceased which came to the hands of said executors, was applied to the payment of debts, the expenses of administration, and the payment of legacies under the will, other than the legacy of ten thousand dollars first above referred to, and the surplus or residue of the assets was distributed and paid to the residuary legatees under the will, in the same manner as if the said legacy of $10,000 had not been made.

The residuary legatees named in-the will were the testator’s eight grand-children, viz: John Tolley Worthington, Anna Maria Worthington, Comfort Worthington, Samuel Worthington, Polly Worthington Johns, John Tolley Johns, Richard Johns, and Sarah Weems Johns, two of whom, Anna Maria and Comfort, are complainants in this case.

By the 2nd administration account, passed on the 11th of January 1837, it appears there was distributed and paid to the eight residuary legatees $4700 each. This sura for each of the complainants, Anna Maria and Comfort, was paid to their guardian, they being then minors; the receipts of the guardian show that he received for each of them as follows: in May 1835, $1500; in October 1835, $2700; and in July 1836, $500. ‘

By the. 3rd account, passed the 14th of February 1839, there was distributed and paid to each of said residuary legatees $950.96, which, by the several receipts exhibited, appears to have been paid as follows: ill January 1837, $200; in June 1837, $237; in September 1837, $113.96; and in October 1838, $400.

By the 4th account, passed the 31st of December 1844, the executors are allowed for $700 paid to each of the residuary legatees, the shares of the complainants being paid to their respective husbands.

By the 5th and last account, passed in May 1846, the executors were allowed for $36.53|-, amount paid to each residuary legatee, the same appearing to be a distribution of the whole residue of the assets among the residuary legatees, who executed the following release:

“Know all men by these presents, that we, John T. Worthington, John T. H. Worthington, guardian of Samuel Worthington, Richard Johns, Jr., John T. Johns, R. Horace Love, who intermarried with Folly Worthington Johns, Thomas H. Hodges, who intermarried with Sarah W. Johns, Charles G. Hanson, who infermarried with Anne M. Worthington, and William 13. Nelson, who intermarried with Comfort Worthington, all grand-children and residuary legatees of JohnT. Worthington, late of Baltimore county, deceased, do hereby severally acknowledge, each of us, to have received of John T. Worthington and Richard Johns, the executors of said deceased, the sum of ($36.53|) thirty-six dollars and fifty-three and a half cents, making, together, the sum of two hundred and ninety-two dollars and twenty-eight cents, and being in full of our respective proportions of the personal estate of the said deceased, as far as the same has come to the hands of the said executors, and accounted for by them with the orphans court for Baltimore coutity; and in consideration thereof, we do hereby release, acquit, exonerate and discharge the said John T. Worthington and Richard Johns, executors as aforesaid, their heirs executors and administrators, of and from all and every action, sitit, claim or demand which could or might possibly be brought, exhibited or prosecuted against them, or any of them, for or on account of our said proportions, or the above mentioned sum or sums of money, or the payment thereof, hereby declaring ourselves fully satisfied, contented and paid, as above specified. Given under our hands and seals this seventeenth day of July, in the year eighteen hundred and forty-five. J. T. Worthington, (Seal.)

J. T. H. Worthington, ~)/a > \ Guaidian for Sami. Worthington. € ' K* /

Richard Johns, Jr., (Seal.)

J. T. Johns, (Seal.)

R. Horace Love, (Seal.)

Thos. H. Hodges, (Seal.)

Chas. G. Hanson, (Seal.)

W. B. Nelson, (Seal.)

Signed, sealed and delivered in the presence of T. Hanson Belt

Which release was duly acknowledged before a justice of the peace, and, on the 12th day of May 1846, was filed and recorded by the register of wills for Baltimore county.

John T. H. Worthington, guardian of Ann M. Worthington and of Comfort Worthington, accounted with his said wards for the several sums of money received by him during their minority from the said executors, and on their arrival at the age of eighteen years, the said Ann Maria and Comfort severally executed releases to their said guardian, wherein each of them acknowledges to have received certain property and money therein specified, “being in Ml of all property and cash due to me by my said guardian;” and in consideration thereof, each of them “releases, acquits, exonerates and discharges the said John T. H. Worlhiuglon, as guardian as aforesaid, his heirs, executors and administrators, of and front all and every action, suit, claim or demand which couhl n:‘ might possibly bo brought, exhibited or prosecuted against him, them or any of them, for or on account of the above mentioned property and cash, or the payment thereof, hereby declaring myself satisfice], contented and paid, as above specified.”

The release of said Ann Alaria being ditto'd the 16th day of November 1839, and that of Comfort bearing date the 20th day of February 18ii, and were severally acknowledged and duly recorded.

The complainants, Anna IVsalia and Comfort M., were married at about the age of nineteen years, the former to Charles G, Hanson, in January 1.840, and the latte? to Wm. B. Nelson, in February 1842.

The original bill in this case was filed oil the 1st day of April 1854, against John Tolley Worthington and Samuel Worthington, claiming from said John Tolley Worthington, as trustee, an account of the said $10,000 legacy, and the mam ner in which the same had been invested, and that there should be paid to the complainants their respective portions thereof. After answers were filed by the respondents, John T. Worthington and Samuel Worthington, the complainants, on the 8th day of January 1855, filed a petition praying leave to amend their said bill; and the same being granted, they on the 11th of January 1855, exhibited their amended bill, whereby they made parties defendants the said John T. Worthington as surviving executor, (Richard Johns his co-executor having died,) and also till the said residuary legatees, claiming among other things such relief as may be necessary to reform and correct the distribution of the said legacy of ten thousand dollars, so as to give to the Complainants their full share thereof, and interest thereon from the time the same became payable, and to cause any of the said parties who may have received more than his, her or their share or aliares, to account for, restore and pay over the same as they may be directed by the court, with interest thereon since the date of such wrongful overpayments; and that the whole distribution of said legacy, and its accumulated interest, may be now adjusted, settled and paid over, as if the same liad never been erroneously made.

The defence of the several respondents is based upon the lapse of time and the laches of the complainants in making their claim, their acquiescence and concurrence ill the settlement of the estate by the executors, and in the distribution of the assets, and the releases executed by the said Anna Maria and Comfort M. to their guardian, and the release given by their husbands to the executors are also relied upon as a bar to the relief prayed, and the residuary legatees have pleaded the statute of limitations in bar of any claim against them, either by the complainants or by the respondent, Worthington.

A pro forma decree having been passed, by the circuit court, dismissing the bill) the complainants have appealed to this court.

The respondent, John T. Worthington, by his answer, claims that in the event of his being held answerable to said complainants for their shares of said legacy, the other respondents, Love and wife, Hodges and wife, John T. Johns and Richard Johns, Who were overpaid in said distribution among the residuary legatees, ought to be compelled by decree to refund and pay the same to him, or by direct decree to pay the same to the complainants to his relief, and the said John T. Worthington and Samuel Worthington have also appealed from said decree.

It is clear, from the facts and circumstances disclosed by the record, that the executors acted from the beginning under a mistake as to the effect of the renunciation by the widow; and all the errors which occurred in the administration of the estate grew out of that mistake. The legal effect of such renunciation is not any longer a matter of contest in the cause; the authorities abundantly establish that by such renunciation the rights and interests of the legatees in remainder were in no wise affected. See Darrington vs. Rogers, 1 Gill, 403; McElfresh, Admr., vs. Schley & Barr, 2 Gill, 203.

While, therefore, the renunciation had the effect of striking from the will the bequest to Mrs. Worthington, the estate in the remainder was vested in the persons to whom the same was limited by the will.

We regard the probate of the will, and the taking out of letters testamentary by John T. Worthington, as a sufficient evidence of the acceptance by him of the trust created by the will, and there is no proof of any actual renunciation or disclaimer till the filing of his answer in this cause. See Hill on Trustees, 214. 2 Wms. on Excrs., 1530.

“Where a party has once fixed himself by any means with the acceptance of a trust, he cannot afterwards, by disclaimer, renounce or repudiate the duties and responsibilities of the office.” Hill on Trustees, 219.

Looking at the several clauses of the will which we have cited, we are of opinion that the trust created and vested in John T. Worthington, was not limited to the life of Mrs. Worthington, but was a continuing, subsisting trust for the parties in remainder after her death, and the trustee could only be discharged from his obligation by the payment of the fund to the cestuis que trust. The legal interest was vested in him by the will; he was charged with the performance of certain duties with reference to the fund; had the power of investing, selling and reinvesting; and to enable him to discharge those duties, and to carry out the purposes of the trust, his estate extended be3rond the life of Mrs. Worthington. Such, we think, was the intention of the testator, as gathered from the will. Whatever might be the construction of the will as to the extent of the estate vested in the trustee, if the propert}^ devised were realty — and on this question the authorities seem to be somewhat conflicting — -here the devise is of personalty, and we entertain no doubt that the fee was vested in the trustee, and could not be devested, except by a transfer by him. Hill, in iiis treatise already referred to, after citing and commenting on the various cases in which this question had arisen, sa3Ts, on page 248: “The question as to the duration of the estate of the trustees can rarely arise where the subject is personal estate; for in that case the whole legal interest is in general vested in the trustees by a gift, without any words of limitation, and will continue in them until devested by a legal transfer or assignment. ’ ’

Such being, in our opinion, the true construction of the will, it follows that it was the duty of John T. Worthington, the trustee, to collect and receive the said legacy of $10,000, for the purposes of the trust.

If he had been sob executor, it is clear that by operation of Saw, the fund would be considered in his hands as trustee after the time limited by law for the settlement of the estate. It has been argued that this principle is inapplicable to this case, because Worthington was a co-executor with another; and Watkins' case, 2 G. & J., 220, has been cited in support of ¡that-view. But it appears from the record that Richard Johns, the co-executor, died before the filing of the bill; Worthington then became, as survivor, the sole executor, and the principle to which we have adverted would therefore apply in the same manner as if he had been sole executor from the beginning. This is the plain inference from the ruling' of the court in Watkins’ case. The trustee is, therefore, answerable to the complainants as cesluis que trust for their respective proportions of the legacy, unless something has occurred to relieve him from such responsibility. In our opinion, the releases relied upon ia defence cannot avail to bar the equity sought by the complainants. Conceding that the releases of the wards to their guardian, made after they had attained the age of eighteen, when by the statute they were competent to execute them, and being made bona fide, would operate as a good acquittance to the guardian, still such releases could not operate to discharge from liability any third person holding funds in the character of their trustee, or responsible to them in that character for funds which had never been paid or transferred to their guardian. Nor cam lire release to the executors, dated die 17th of July 184», have the effect of discharging John T. ’Worthington, the trustee, from his liability for the specific legacy. The latter release, by its terms, purported only to discharge the executors from the sums due to the parties releasing, as residuary legatees of John T. Worthington, deceased, and applied only to the proportions of the personal estate of said deceased due to them in that character.

The only remaining questions for us to consider, are, whether the complainants are barred of their equitable relief by limitations or lapse of time, or their laches and delay in making their claim? or by acquiescence and concurrence in the settlement of the estate and distribution of the fund?

After a careful examination of the numerous authorities cited as applicable to this part of the case, we are of opinion that none of those grounds of defence ought ip prevail in this court. The bequest in the will is admitted to be valid, and the accounts exhibited show conclusively that it has not been paid to the parties entitled, owing to a mistake of the executors in the construction of the will. Those accounts show also, the manner in which and (he persons to whom the fund has been improperly paid. The parties who have received wrongfully,,as well as the executor and trustee, are alive and in court, subject to its decree; and we see no suiln cient reason why the court may not do simple justice, by an equitable adjustment of the claims of the parties, and a correction of the errors which have been committed.

We have said that tiie trust in John T. Worthington, under the will, was a continuing trust; and that being so, we think the facts in the case do not show any such lapse of time, laches, or delay on the part of the complainants as can operate to bar their claim against him. What will constitute such a lapse of time and laches as will bar the right of parties to recover on a claim purely equitable, all the authorities say, must depend upon the particular facts and circumstances of each case. In the administration of the estate, the duty of the executors was to ascertain the persons entitled to the fund; their proceedings in the orphans court were ex parte; no steps were taken by them, nuder the act of 1798, ch. 101, sub-ch. 14, sec. 12, in appointing a meeting of claimants, nor was the distribution made under any order of the court; it was not conclusive on the complainants, even if they had been sui juris. But eyen supposing that those proceedings were known to the complainants, or were constructive notice to them of the acts of the executors, until the final distribution was made, they were not a notification to them that the legacy was not to be paid; notwithstanding any thing which appeared in the accounts, there might have been sufficient assets in the hands of the executors, not returned to the orphans court, to pay the legacy, or sufficient assets for that purpose yet to be received by them. When the final distribution was made, tile complainants were married women. Under these circumstances, we find no such acquiescence or concurrence on the part of the complainants as ought to preclude them from relief against John T. Worthington, and inasmuch as the respondents, Love and wife, Hodges and wife, John Tolley Johns and Richard Johns, have erroneously received the fund to which the complainants are entitled, they are equitably bound to refund the same, they having taken the fund subject to the trust, and the defences set up by them cannot avail to bar the recovery by the complainants; what we have said as to the responsibility of Worthington, is equally applicable to them. See 2 Johns. Ch. Rep., 626, 627. 1 McCord's Ch. Rep., 388, 389. Stephenson vs. Axson, 1 Bailey's Eq. Rep., 274.

(Decided July 22nd, 1858.)

The sum which the complainants were entitled to receive under the will, was one-fourth part each of the legacy of $10,000; having already received the one-eighth pari each of that sum, in the distribution erroneously made, there remains due to each of them the principal sum of $1250, on which we think they are equitably entitled to receive interest from the time that the same was wrongfully paid to the residuary legatees.

The payments were made to them in various sums and at different times, running through a period of several years; a portion of the money thus paid to them, they were entitled to as residuary legatees, and in fixing the time from which interest is to be counted, we adopt the date of the last payment. Considering that the amount which the complainants are entitled to recover ought to be paid by John T. Worthington primarily, and that he is entitled to relief against the respondents, Love, Hodges, John Tolley Johns and Richard Johns, who are ultimately bound for the same, we shall decree accordingly.

As to the respondent, Samuel Worthington, who, by his answer, disclaims any claim for the portion of the legacy due to him, the bill ought to be dismissed.

Decree reversed, and decree in favor of complainants.

The same judge delivered the following opinion on the appeal of John T. Worthington and Samuel Worthington:

The decree from which this appeal was taken, was in favor of the appellants. They were respondents below, and by the decree of the circuit court, the bill was dismissed with costs. The appellants were, therefore, in no manner aggrieved thereby, and the appeal by them was erroneous, and must be dismissed. In order to save the rights of the respondents, John T. Worthington and Samuel Worthington, as set up by them in their respective answers, no appeal on their part was necessary.

Appeal dismissed.

(Decided July 22nd, 1858.)