Wellborn v. Rogers

McDonald J.,

By the Court. delivering the opinion.

This case comes up on errors assigned upon the rejection by the Court of Charles G. Gartrell’s depositions offered by the defendant, and on the charge of the Court as given, and ©n the Court’s refusal to charge as requested. The bill was filed originally against Carlton Wellborn as executor, in right of his wife, Rebecca Gartrell, of the last will and testament of Joseph Gartrell deceased. Charles Gartrell was made a party defendant by amendment of the bill. The testator appointed Abraham Simons his executor and his wife his executrix. Simons did not qualify. The wife qualified and Well-born intermarried with the executrix, and in this manner became executor in right of his wife.

[1.] On the first hearing of the cause a Terdict was rendered by the jury in favor of the complainants. Wellborn appealed, but his co-defendant, Gartrell, did not. On the appeal trial, Gartrell’s depositions were offered in evidence by the defendant and the Court refused to admit them. Gartrell not having appealed, he was no party to the issue to be tried, and was in no manner interested in the event of til® suit so far as it remained yet to be determined. This Court' has held that a witness so situated is competent, and the judgment of the Circuit Court excluding his evidence musí! be reversed.

[2.] It was objected that the defendant had not showrn «r stated the facts he expected to prove by the witness; that his answer having been read to the jury, his evidence was before them; and that he having been properly a party de-< ■fendant to the cause, and-.an appeal having been entered, he could not be examined.

The witness having answered, and his sworn answer haring been read to the jury in the hearing of the Court, the presiding Judge was thereby informed of the nature of the proof proposed to be made by him.

[3.] His answer was not evidence for his co-defendant, and if it had been, at the time he made it, the defendant had no right of cross examination, nor the power to call his attention to particular facts, and being no party to'the issue now to be tried, and his interest being in no manner involved, the appellant had a right to examine him and have his testimony.

The error assigned on the charge of the Court in regard ts the mode of calculating interests chargeable against executors is in accordance with the repeated decisions of this Court and must be sustained.

The alleged ^error of the Court in the following assignments on the charge is abandoned.

1st. That it was Wellborn’s duty to make returns, and til? he can derive no benefit from failing to do so, and responding generally that, he can’t toll.

2d, That it is the duty of guardians and executors to keep and render annual returns.

3d. That it is the duty of a guardian or executor to manage tlie property of their cestui que trusts solely for their benefit, and that he cannot derive a benefit therefrom to him-«elf.

4th. That the will of Joseph Gartrell appointed Rebecca his wife, his executrix and the guardian of his children, and created an express trust of them and their property, and if Welborn on his marriage with the widow took upon himself the trust, he was bound to account as executor and guardian.,

5th. That it was the duty of Wellborn to have made annual returns as guardian and executor to the Court of Ordinary, and the law admits of no excuse and the expense is no excuse.

6th. That the returns of the Ordinary are evidence for th® defendant, hut when, in* his answer, he sets up payment# and expenses, not in his returns, he must prove them ; his answer is not proof without evidence in support.

7th. That what is responsive to the hill is evidence for him, until overcome with evidence equivalent to two witnesses; hut when he sets up, in avoidance, any defence, as that he has received money or property, but has.paid it away: this is not evidence for him; he must prove it.

8th. That when Mr. Wellborn answers, that he has paid away money or property of his ward for debts and in their education, but has kept no accounts, and has forgotten; this is no excuse, he was bound to keep accounts.

9th. That it was the duty of Mr. Wellborn so to employ the property of his wards as would be most profitable and beneficial to them, and that he is liable for the hire of their negroes and the rent of their land, when the lands were not cultivated by their slaves, and it is no excuse that as he has kept no accounts, he has forgotten.

10th. That if the jury believe there was fraud in procuring the deed from his wards for the Wilkes lands to himself, it is void, and as he admits, Mrs. Rogers was under age, it was voidable as to her.

11th. That when Mr. Wellborn undertook to have a setilement and division wi.h his wards, touching their property and his guardianship and his executorship on the 10th of April,’l833, it was his duty to have apprised them fully of their rights, by exhibiting to them in writing, a-full and detailed account of his management and expenditures of their estate from year to year, and to have furnished thém with a copy of their father’s will and.had them advised and aided in settlement and division by some impartial friend; and that if this was not done, and Mrs. Rogers was ignorant of her rights or was deceived or misled by her confidence in the defendant, or if she was a minor, the deed of division is not binding oa her, nor on any of them, if their property was still in his hands.

As the above assignments of error are not insisted on in this Court, we will proceed to the consideration of those that are.

[4.] It is assigned as error that the Court charged the jury, that any conveyance made by Mrs. Rogers, when under age, is void. This charge, in the abstract, is too broad, and as applicable to the case in which it was given, depends entirely on whether it was against ti e interest of Mrs. Rogers, that the conveyance or conveyc.nces were made. The deed of the twelfth December, 1832, conveying the land on Kemp’s creek, in Wilkes county, by the children to the executor, expresses a consideration of ten dollars, and that ■ the full consideration and value was allowed to them jointly and severally in the distribution and division of the negroes and other property of Joseph Gartrell, deceased, which had been paid and allowed to them. In his answer, the defendant says, that the said deed was made to him to enable him to sell and convey the lands and reimburse himself in debts and expenses incurred as executor. If the estate had the entire benefit of this sale, and the land was sold for its value, and by that means other property was saved to the legatees, quite as valuable to them as the land would have been, which must have been disposed of to defray the expenses and pay the debts referred to, the infants were not injured by their deed and it cannot be avoided. This depends on the proofs in the case. Executors should always proceed legally, and obtain orders for sale of property when the will does not •direct or authorize it, and sell strictly in conformity to law. In such cases, when the sale is without fraud, he is liable for the price bid at the sale only, when he assumes the responsibility to sell without the sanction of the Court; he is bound to show the necessity for the sale, and account for the value •of the property, whether it sells for it or not. This, it is true, he may prove from the circumstances of the case, but the jury should be satisfied. There can be no pretext for saying that the couveyance of the two negroes to the executor’s children, was to the interest of the parties making it, and the •executor ought not to have recognized it as an instrument conveying the property, and he is as much liable to those who were under age when it was made, as if it had never been ■executed.

[5.] The Court charged the jury that the legacy to John Gartrell lapsed on his death without heirs, and that Mrs. Rogers was entitled to one-fifth of it. John Gartrell survived the testator eleven years or thereabouts, and had received his •legacy. Upon his death intestate, his estate having vested in right and possession, descended to his heirs at law, and did not fall into the residuum of his deceased father’s estate. It is urged that the Court simply mistook the name of John for Jefferson, whose legacy unquestionably did lapse, he having died before the testator, but it was a mistake calculated to mislead the jury, and to induce them to decree against the defendant, one-fifth of the value of John’s estate. They were told that the complainants were entitled to it.

[6.] The Court charged the jury, that when there is a will, it is the law of the executor’s.duty, unless otherwise directed by a Court of Chancery. The Act of 1829, giving the Court of Ordinary power and jurisdiction to order the sale of any part of a testator’s estate, when it shall appear to be the interest of the estate that it should be sold, clothes the Court of Ordinary, to that extent, with all the powers of a Court of Chancery, but that Act having been passed long since the Court of Ordinary passed an order of sale of some of the' property of this estate, can have no application. My brethren, however, think, in which opinion I do not concur, that the Court, of Ordinary had jurisdiction to order the sale under the Act of 1805.

[7.] Exception is taken to the Court’s charge to the jury, that if the executor and guardian omit to keep annual accounts and make annual returns, they are beldlo strict proof' that they.have done their duty, touching the trust propertyj and that it is not enough for them to answer to a bill that they have done their duty, but they must prove it, and prove how and in what manner. Whether this charge be correct,, depends on the construction placed on the terms, “strict proof,” used by the Courr. The failure of an executor or guardian to make returns according to law, is an omission, of duty, and therefore a breach of trust, and throws upon him the burden of making such proof as shall be satisfactory to the Court and jury, that ho has discharged his trust in regard to the property with iidelity. Pie must establish it by proof, and his answer is not to be regarded except, when according to law, it may be evidence for him, and then such-weight may be given to it as it may be entitled to. The Court and jury will examine the whole case, the embarrassments surrounding the executor on one hand, and on the other his management of the property, and the necessary charges upon it, and render a decree according to the justice and equity of the cause.

The defendant is bound to account for the price of Stephen,, and of Hetty and her children, and of the land, and if he does not adduce evidence satisfactory to the jury that he applied the proceeds of the sales ro the payment of the debts, and liabilities of testator’s estate, he must account in the manner hereinbefore stated, and according to the charge of the; Court.

[8.] The Court charged the jury, that “ if they believe Mrs. Rogers signed the instrument called a receipt and settlement, and dated on the 38th December, 1839, just before her marriage and after she was twenty-one years of age, but while she and her property were still under Wellborn’s control and management, and while the relation of g'uardian and ward still continued between them, that receipt and set-. tlement are no bar, but she may go behind them and open the settlement, more especially if she was not, at the making of that receipt and settlement, fully apprised of her right by an exhibition of the will of her father, and a statement in writing of his acts, as executor and guardian ; or if there was any fraud or concealment, or undue influence exercised by the defendant.” This charge is 'excepted to, but it is in the main right. Although the actual relation of guardian and ward ceased, on Mrs. Rogers attaining the age of eighteen, yet if she and her property remained with the defendant, and he managed and controlled both, she relying implicitly on his rectitude in the management, up to the time of her giving the receipt, although she had long passed the age of twenty-one years, the presumed influence arising during the existence of the relation' will be considered as operating at the time, especially if the settlement Avas made exclusively on the exparte statement of the executor. This Avas a settlement between executor ahd legatee, but that under its-circumstances does not vary the case. He had married the testamentary guardian, and if .he had no legal right to assume the position of his wife in that character, he did it in fact and acquired all the influence of the actual relation, and perhaps more, from his stepping into the place of her father, Avhich seems to have continued, without the slightest abatement, down to the period of the settlement, the giving of the receipt, and to the marriage which took placo a few days after. The receipt and settlement thus given and made are no bar to the opening of the account.

[9.) The Court further charged the jury, that “ the statute of limitations does not run against a trust, so long as the trust exists, and although it begins to run when there has been a final settlement by a guardian, with his ward and the ward and his property have left the care and control of his guardian, yet so long as the property remains in the possession of the guardian the trust continues, and the statute does not begin to run, notwithstanding any settlement, so that if the jury believe, Mrs. Rogers’ legacy remained in Mr. Welborn’s possession up to the time of her marriage in 1839, and she has been a feme covert ever since, the statute of limitations has never yet begun to run against the complainants, for she is the meritorious cause of the suit, and. it would survive to her in case of Mr. Roger’s death.” This charge is excepted to. It has been held with strong reason and on sound principle that an “unbroken continuance of a guardian’s management of his ward’s property, after the ward has attained majority, is, in effect, a continuance of the guardianship as to the property; and between the same parties, the same principles must be applied to the accounts subsequent, as to the accounts during the period of minority. And this jealous watchfulness of transactions, which, from the relation between the parties, are so open to fraud, has been extended, when all accounts relative to the guardianship, were previously settled and the connection was at an end; but the transaction impeached, appeared to have grown out of the former relation.” Mellish vs; Mellish, 1 Si. Stu. 145; Morgan vs. Morgan, 1 Atkins 488 ; Goddard vs. Carlisle, 9 Price 183; Wright vs. Proud, 13 Vesey 138; Wood vs. Downs 18 Vesey 127; Revel vs. Harvey, 1 Sim. and Stu. 507. This doctrine applies to transactions between the parties, and goes to the extent that they may be enquired into, notwithstanding a settlement for the same causes, and under like circumstances that settlements between trustees and cestui que trust may be enquired into. The whole matter may be opened and the accounts looked into, when the circumstances show undue influence, improper interference, fraud or the like. If there has been a settlement and a receipt given, that fixes a point from which the statute begins to run, and puts an end to that technical kind of trust, against which the statute of limitations is not a bar. But if the settlement is made between trustee and cestui que trust, the former from his peculiar relation to the latter, being presumed to have a decided influence over her, without exhibiting his accounts, that alone throws a suspicion upon the transaction, and the cestui que trust may at any time within the statutory bar institute suit and have the settlement examined into. If a fraud be discovered in the settlement, the statute does not begin to run-until the fraud is discovered, if the party labors under no-disability, and is not in laches.

[10.] If the cestui que trust be a feme sole, and marry after the settlement before the discovery of the fraud, the statute does not run against her during the coverture.

,[11.] If the actual trust be terminated, but the trustee continues to exercise the same control of the property and influence over the person, that he had during its existence, so as-to retain power or sway over the will of his former cestui que trust, and stifle enquiry into his conduct, that will prevent the running of the statue. The connection must be so wholly at an end, as to indicate that the cestui queútrust is no longer controlled by the influence which prevailed during the existence of the relation. If for any cause the statute of limitations does not begin to run against a feme sole, and she marries, it remains suspended during her coverture.

[12.] The Court further charged the jury that “the bequest of the negro Allen to Joseph Gartreli, made the said Allen chargeable with the debt of Abram Simons, and that the executrix, Rebecca Gartreli and defendant Gartreli had no right to pay the debt out of the residuary estate.” Error is assigned on this charge. The testator bequeathed certain land and negroes to his son Joseph Gartreli, and added, “and also Allen, when I pay captain A. Simons what 1 owe him.” The debt to Simons was to be paid. .When “ I pay,” is the language of the testator. When his estate should pay that debt, and not before, Allen was to become the property of his son Joseph. He should remain and work or be hired, and contribute the proceeds of his hire and labor u wards the payment of the debt, before he should become the property of his son Joseph. He was not chargeable otherwise with the payment of the debt.

What we have already said in reference to the matter of the second request made of the Court, to charge the jury by defendant’s counsel, is perhaps sufficient. If the influence acquired by Wellborn over Mis. Rogers in, bis character of guardian continued down to the period of her marriage, so as to repress all apprehension, oir her part, of fraud in the settlement, the saving in the statute did not begin to run, and after marriage the statute protected her from its operation.

The third request o'f the defendant’s counsel made of the Court to charge as to the effect of his answer as evidence in the particulars specified was a legal request, and it ought to have been given as asked. It would have been the duty of the jury, after giving due effect to the answer, to have looked through the whole case, and to have ascertained from the evidence before them, whether it was overcome in these particulars.

We have gone through the case and considered all the errors assigned, which were insisted on in this Court and our judgment is that the judgment of the Court below must he reversed, and a new trial ordered.

Judgment reversed.