Hinson v. Williamson

74 Ala. 180

• Court: Supreme Court of Alabama
• Decided: December 15, 1883
• Status: Published

Opinion

SOMEBYILLE, J.

— The question of principal importance is the proper construction of the will of the testator, A. F. Williamson, bearing date November 28th, 1863. The second item of the will reads as follows:

“It is my will and desire, that my entire estate shall be kept together, under the absolute management and control of my beloved wife, Martha Williamson; she, my beloved wife, having full power to purchase or sell any property she may think proper, as long as she, my wife, remains a widow.”

The question is, does this clause of the wall, aided in interpretation by other parts of the instrument to which we shall advert, impose upon the widow a personal trust, capable of execution alone by her, or a mere executorial duty which could be performed by the administrators de bonis non with the will annexed, Hall and Williamson, who seem to have attempted its execution.- This inquiry determines the further and dependent one, involving the jurisdiction of the Probate Court of Lowndes county, authorizing these administrators to carry out this clause of the will.

There are certain well-settled principles of law, derived from the past decisions of this and other courts, which, in our view, present an easy solution of the inquiry.

It can not be doubted that, when a trust is created by will, the Probate Courts of this State have no jurisdiction to enforce or settle such trusts. — Harrison v. Harrison, 9 Ala. 470; Johnson v. Longmire, 39 Ala. 143.

This principle, however, very clearly does not oust the jurisdiction of the Probate Court in all cases where a testator by his will devolves testamentary trusts upon the person appointed executor. Such executor may be regarded as occupying a dual capacity in his relations to the will — that of trustee, as well as of an executor proper. These two offices are not to be considered as necessarily blended in their official functions.' — Perkins v. Lewis, 41 Ala. 649; Perkins v. Moore, 16 Ala. 9; Leavens v. Butler, 8 Port. 380; 1 Perry on Trusts, § 281. The Probate Court, in cases of this nature, may properly undertake to settle up such matters as pertain to the executorial duties or office, and decline to take cognizance of the extraordinary trusts which fall outside of the scope or sphere of the ordinary duties of executors and administrators. — Ex parte Dickson, 64 Ala. 188; Pinney v. Werborn, 72 Ala. 58.

But, when it can be gathered, from a sound construction of the whole will, that the intention of the testator is to attach tlie execution of the trusts to the executorial office or character, and not to the person of the executor or trustee, and the duties of the executor and of the trustee are so blended and mingled as that they can not be distinguished or separated the one from the other — the functions of the two offices being indissolubly linked together — then the Probate Court will decline any jurisdiction to execute the will, but will remit the parties concerned to a Court of Chancery, if the trustee has accepted and undertaken the duties of the trust. — Ex parte Dickson, supra; Perkins v. Lewis, 41 Ala. 649; Anderson v. McGowan, 42 Ala. 280; Coleman v. Camp, 36 Ala. 159; Perry on Trust, §§ 262, 263.

The rule, moreover, is unquestionable, that powers which imply personal confidence in the donee, when conferred by will, can be exercised alone by the person or persons in whom such confidence is reposed ; and if they disclaim, or refuse to exercise the trust, the power will be considered as revoked and absolutely annulled. — Perry on Trusts, § 273; Cole v. Wade, 16 Vesey, 44; Wilson v. Pennock, 27 Penn. St. 238.

The will of the testator in the present case, in our opinion, created such a personal trust in his widow, as authorized her alone to keep the estate together %mder the provisions of that instrument, and the Probate Court of Lowndes county had no jurisdiction to devolve such testamentary duties upon Hall and Williamson, the administrators de bonis non. If the will had simply authorized or directed her to keep the estate together, without more, this power would not, of itself, have constituted an extraordinary trust. In Foxworth v. White, decided at the last term' (72 Ala. 224), we held that such such a power was an ordinary executorial duty, because it was one authorized to be conferred on personal representatives by the Probate Court, under the provisions of the statute. — Code, 1876, §§ 2602, 2607. Such is not, however, this case. The power is here conferred upon the inseparable condition, that it be exercised “ under the absolute management and control” of the testator’s widow, who was also invested with “full power to purchase and sell arvy property”' she might think proper, so long as she remained a widow. She was relieved of all necessity of giving bond and security,- — -itself a circumstance implying confidence. The “ annual profits ” of the estate she was directed to invest by making purchases of property within her discretion, to be distributed to certain of the children for the purpose of equalizing their distributive shares. If the widow either died or married, items four and five make provision for the immediate distribution of the estate. It is manifest that extraordinary and unusual powers of management are here devolved by the testator, upon oüe in whom he had the most implicit confidence. We can not say that the testator would have been willing for his estate to have been kept together, without the instrumentality of these supplementary powers, which closely approximate powers incident to ownership, and the absence of which would not only cripple the efficiency of the enterprise, but would seem to defeat the substance of his testamentary purpose. Nor are we permitted to say that he would have reposed ■this confidence or trust in any other person than the one whom he has selected. The power of keeping the estate together is •so blended with the discretionary powers expressly conferred in •order to carry it out, that we cannot undertake to separate and distinguish them. It conferred a personal trust upon the widow, and, in view of her refusal to accept it, the Probate ■Court had no jurisdiction to execute the will. The settlements made, therefore, in this court, of the administrations of Hall and Williamson were incorrect, so far .as they were conducted* upon the theory of the existence of such jurisdiction. The views of the chancellor, as expressed in his opinion, fully accord with these principles.

The next inquiry of importance is, how far Hall was liable for the acts of his co-administrator, Williamson, in attempting to keep the estate together under the authority of the will.

The general rule is, that one trustee is not ordinarily held liable for the acts, defaults or devastavits of his co-trustee, each one being liable only for such sums of money as he may receive in the due course of his fiduciary duties. — 2 Perry on Trusts, §§ 415, 421. But he will be adjudged liable as a co-principal, if he stands by, and knowingly permits, or acquiesces in a breach of trust or wrongful act of a co-trustee, or otherwise participates in a devastavit by him. — Ib. §§ 419, 454. So, if one trustee, by his voluntary co-operation, or connivance, has enabled one or more to accomplish some known object in violation of the trust. — 2 Story’s Eq. (12th Ed.) § 1280; Taylor v. Roberts, 3 Ala. 83. The giving of a joint bond is an agreement to be expressly liable each for the other.' — Pearson v. Darrington, 32 Ala. 227. And the accounting together jointly to the court, or other like act of co-operation, is generally construed a holding themselves out as acting together, and assuming a joint liability.- — Scruggs v. Driver, 31 Ala. 287; Stewart v. Conner, 9 Ala. 803; 2 Perry on Trusts, § 419. It is said by Mr. Story, that trustees are liable each for the other, “ if it is mufoially agreed between them that one shall have the exclusive management of one part of the t/rust property, and the other of the other part ” (2 Story’s Eq. § 1284), — a proposition which is amply sustained by authority, as well as supported by reason. — Knight v. Haynie, at present term ; Jones’ Appeal, 42 Amer. Dec. 291. It is upon this principle that it has been held, where trustees appointed one of their number to be factor to their trust estate, that they would be liable for his defaults as agent, though not as trustee, in the same manner that they would be for the defaults of any third person whom they might appoint to the same agency. — Howe v. Pringle, 8 Cl. & Fin. 264; Jones' Appeal, supra, 42 Amer. Dec. 291.

The administrators, TIall and Williamson, are shown to have executed a joint bond. They applied jointly to the Probate Court for authority to keep the estate together under the statute. Hall advanced various sums of money, for the purpose of carrying on the farming business, and is shown to have received a portion of the crops raised on the plantation. So, it seems to have been mutually agreed, that Williamson should take charge of this part of the administration; and although Hall may have had nothing to do with the active snperintend«ence and management of the farming transactions, he is sufficiently shown to have co-operated in and authorized them. The testimony shows, furthermore, that the two jointly united in accounting together to the Probate Court, until the death of Hall, which occurred in November, 1876.

In our judgment, there is sufficient testimony in the record, exclusive of that of Howard, to support the finding of the chancellor, that the act of keeping the estate together under the immediate management of Williamson, was the co-operate act of both administrators, and imposed a liability upon each of them, as joint principals, to account for the profits of the farming business, irrespective of the particular sum of the proceeds received by either. And, although the settlement made by Williamson in the Probate Court, be regarded as a discharge of Hall’s liability, in his capacity as surety on the administration bond, yet this would not affect or discharge the super-added liability incurred as a co-principal, by reason of Hall’s participation in any devastavit committed by Williamson. The chancellor places his liability upon the latter ground; and in this, we think, his decree is free from error.

The administrators, as we have seen, derive^ no power from the will to keep the estate together. Their only authority to carry on the farming operations must be derived from such occasional orders as were procured to this end from the Probate Court, under the provisions of the statute. — Code, 1852, § 1902; Code, 1876, § 2602. This statute clothed them with no authority to keep up the family establishment, or to support the decedent’s family at the expense of the estate. — Pickens v. Pickens, 35 Ala. 442.

In such cases, the reasonable expenses of the family should be apportioned among the several distributees separately, so as to constitute a charge upon the share of each. They can not be charged in solido, without reference to the particular member of the family on whose account such expenses were severally incurred. * The style of living is authorized to be maintained upon a basis corresponding with the fortune and social position or condition in life of the parties. — Pinckard v. Pinckard, 24 Ala. 250; Pickens v. Pickens, supra.

Where an administrator, or executor, is not authorized to keep an estate together, either by will or by authority of the Probate Court, he does so at his own hazard, and the distributees may elect to take the profits, or to charge him with rent for the use of the property.- — Steele v. Knox, 10 Ala. 608.

If they elect to take the profits, an allowance must, of course, be made for all reasonable expenses incurred in making them. They will be entitled, in other words, only to net, and not to gross profits. — McCreliss v. Hinkle, 17 Ala. 459; Harrison v. Harrison, 39 Ala. 489; Steele v. Knox, supra.

Where rents 'are chargeable, interest will be allowed from maturity; the general rule being, that interest is always to be allowed, as the legitimate fruit of principal. — Harrison v. Harrison, 39 Ala. 489.

The power to keep the estate together carries with it the incidental authority of employing all ordinary means, which' may be necessary and proper to carry out such express power. Hence, all expenditures are allowable which are reasonably necessary in order to cultivate the plantation, make, gather, and dispose of the crops. — Pinckard v. Pinckard, 24 Ala. 250; Gerald v. Bunkley, 17 Ala. 170.

This would probably include a fair compensation for the services of the administrator, which may be considered as extraordinary in their character. — Harris v. Martin, 9 Ala. 900; Craig v. McGehee, 16 Ala. 41.

The foregoing principles are all applicable to the present case, in view of the fact that the administrators omitted to procure authority from the Probate Court to keep the estate together, during several years of their administration, while during other years they did procure such authority. The chancellor seems to have observed all of these rules, in passing upon the exceptions to the register’s report, except the last, allowing compensation to the administrators for extraordinary services performed in carrying out the orders of the Probate Court empowering them to keep the estate together. This error, however, and such other minor ones as we have been able to discover in the account, are more than over-balanced by the large amount shown by the report of the register to be dne from the estate of J. H. Hall, in the matter of this administration, — a claim to which was waited in open court by the defendants, who declined to take judgment for it:- It is obvious that any errors in the account, less in amount than the sum thus voluntarily remitted, would be errors without injury, as-against the complainant. The remittitur will be construed, in other words, to embrace these identical errors.

We do not consider the assignments on the cross-appeal by the defendants, as they are agreed to be abandoned in the event-of our refusal to reverse the decree on direct appeal. We are requested by counsel not to consider them, in case of an affirmance of the chancellor’s decree as rendered.

We discover no error in the record, and the decree is affirmed.