Howard v. Gilbert

39 Ala. 726

• Court: Supreme Court of Alabama
• Decided: January 15, 1866
• Status: Published

Opinion

A. J. WALKER., C. J.

William E. Gilbert, tbe defendant, was appointed trustee of tbe specified trust, in 1848, by tbe register in chancery for Russell county. Tbe trust originated in tbe State of Georgia ; and there Was, at the ^ime of tbe register’s appointment, an acting and surviving trustee in Georgia, appointed by a court in that State. Tbe petition by Wilham E. Gilbert, for bis appointment, is placed on tbe ground, that tbe property of tbe trust was in tbe possession of tbe trustee in Georgia, and that such trustee was desirous of delivering it to any person appointed under that petition. These facts are alleged in tbe bill, and admitted by Gilbert, tbe only defendant who has any interest, and does not disclaim all interest in tbe suit. They must, therefore, be treated as true.

In 1848, there were only two acts authorizing a register in chancery to appoint a trustee. Those were tbe act of 1843 (Clay’s Digest, 350, § 33), and tbe act of 1848 (Pamphlet Acts, p. 16). Tbe former authorized tbe register to appoint, in the event of tbe death of a trustee. Tbe latter extends tbe authority, and includes cases where tbe trustee dies, resigns, fails, or refuses to act, or removes beyond tbe Emits of tbe State. Neither of tbe contingencies presented in these two statutes bad occurred when tbe register in chancery made tbe appointment. Tbe register, in appointing a trustee, constitutes a tribunal of special and limited jurisdiction conferred by statute; and exercising tbe authority to appoint in any other than tbe specified cases, his decree is void. — Gunn v. Howell, 27 Ala. 663. Tbe order appointing Gilbert trustee is simply void.

[2.] Tbe defendant Gilbert stands, therefore, in tbe position of one having without legal authority tbe property of tbe trust in bis possession; and tbe bill may be regarded as one filed by a part of tbe cestuis que trust, to recover from one wrongfully bolding tbe trust property, and to obtain tbe appointment of a trustee to execute tbe trust. In this point of view, tbe equity of tbe bill is sustained, and tbe chancellor should not . have dismissed it.

[3.] Tbe decree of tbe Georgia court, as it is represented in tbe bill, did not vest a separate estate in Mrs. Howard; and ber husband would certainly be entitled to join with her in a suit to protect her interest in the trust property. The answer admits the correctness of "the bill'in this particular. The common law must be presumed to prevail in Georgia; and under it, the husband certainly had an inter* est, such as to justify the joining him as a complainant.

Decree reversed, and cause remanded.