Bromberg v. Hoffman , 207 Ala. 144 ( 1921 )

The sole purpose of this appeal is to review the decree of the court below denying complainant compensation as alleged trustee of said bonds disposed of under the will of one Nardin, deceased. So far as the equity of the bill and merits of the cause are concerned, the submission was had upon the bill and answer — the complainant offering no proof aside from certain certificates, the notation of which will appear in the statement of the case, but which were more or less formal and without influence upon the substantial issues presented by the pleadings.

It is a well-recognized rule that, when the hearing is on bill and unsworn answer, the complainant is not entitled to relief unless so entitled on the allegations of the bill admitted in the answer. Winter v. City Council of Montgomery,83 Ala. 589, 3 So. 235.

Complainant acquired possession of the bonds in question from one Lesquereux, who was executor of the will of one Lucinn Nardin, deceased. The executor was a nonresident of this state, and the bonds were payable at Mobile in the probate court of which county the administration of said estate was pending, and these bonds were merely sent by the executor to the complainant as a matter of convenience in the collection of interest coupons and the payment thereof to the parties entitled thereto under the will. This was purely a ministerial service performed by the complainant for the executor, and as the latter's agent, and to whom he was accountable. Perry on Trusts, § 246. As to compensation for any such services during the lifetime of the executor, the complainant, of course, will be expected to look to the latter therefor; as the executor died in 1892, it will be presumed from the lapse of so great a time that, if compensation is expected, it has been paid. 21 R. C. L. 144 et seq.

In the third paragraph of the bill as amended, however, complainant alleges that Emma Laurendine left said bonds in his possession, charged by her with the duty of collecting and paying over the proceeds, which he did, and that after her death Jennie Nicholas, to whom the income from the bonds was bequeathed for her life, also left them in his continued possession, but did not request complainant to collect and pay over the proceeds to her. By these averments complainant seeks to establish himself as trustee of the bonds for Emma Laurendine and other devisees named in the will; but these averments are expressly denied in the answer, and it is averred that said Emma Laurendine during her lifetime tried on numerous occasions to compel complainant to deliver the bonds to her, and, also, after the death of said Emma, Jennie Nicholas, with other beneficiaries mentioned in the will, have tried unsuccessfully for many years to compel the complainant to distribute said bonds to the persons entitled thereto. It is therefore expressly denied that any commission is due the complainant for handling said bonds, as respondents did not intrust him with them, nor was he intrusted with them under the will, but obtained their possession from the executor as a mere matter of convenience for the latter. There are no admissions in the answer which would tend in the slightest to authorize compensation to complainant as trustee; and the positive denials and averments in the answer place the burden of proof upon the complainant, and he has offered no evidence to sustain these material allegations of his bill. Daughdrill v. Lockhart,181 Ala. 338, 61 So. 802.

It is conceded, of course, in this state that compensation is allowed trustees, and it is a matter resting largely in the discretion of the court, reviewable, however, on appeal. Note to 2 Perry on Trusts, § 918, and note to Gibson's Case, 17 Am. Dec. 257, where many of our cases are noted. But, before these authorities can be said to apply in the instant case, it must first be shown that the complainant was in fact a trustee in the true sense of that word, entitling him to compensation. Complainant has failed to carry the burden upon this most material aspect of the cause, and the court below properly denied the compensation sought.

In still another aspect of the case it may be seriously questioned that, in any event, the relationship of the parties would justify the holding that any compensation was contemplated. Complainant received these bonds as a mere agent of the executor for the convenience of the latter and collected the coupons, paying them over to the parties entitled thereto — purely a ministerial function. It has been held that, if compensation appears not to have been contemplated by the parties, none will be allowed. 39 Cyc. 482; White v. Rankin,18 App. Div. 293, 46 N.Y. Supp. 228; North Cent. Ry. Co. v. Keighler et al., 29 Md. 572. It is unnecessary, however, to determine this question, as the reasons above noted suffice to sustain the decree rendered.

Affirmed.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.