Caruthers v. Corbin , 38 Ga. 75 ( 1868 )

Walker, J.

In 1834, John J. Saylor, then of Lexington District, South Carolina, made his will, and died, in South Carolina, pretty soon thereafter, say in 1835. By this will he provided for the practical emancipation of six certain favorite slaves, and made sundry bequests in their favor. The bulk of his property was left to his brother and sisters, during life, and at their death to their children. The leading object of the will was to secure the practical or actual emancipation of the favorite slaves, if possible; and the other bequests were made conditional upon all the beneficiaries under the will, aiding to effectuate this object. After making certain specific bequests which disposed of but a comparatively small portion of the estate, he devises, in the sixth item, to trustees, the residue of his estate, both real and personal, to be held in trust for the benefit of testator’s sisters, Mary Parr and Marcella Caroline Corbin, (wife of Samuel Peter Corbin,) and his brother, Samuel S. Saylor, in the following proportions : say one sixth of the annual income arising from such residue for the benefit of said brother during his life; and the remaining five-sixths of such income for the use of said two sisters during their natural lives. After the death of the brother and sisters, said trustees were to convey one-sixth of said residuum to the children of the brother, should he die leaving more-than one, share and share alike; but if he should.leave but one child, him surviving, then but one-twelfth of said residue should be conveyed to such child; the trustees were to convey the balance of said residue, say five-sixths or eleven-twelfths, (as the case may be,) to the children of said two sisters, (say to such children or child of said two sisters as may be alive at the death of the survivor of the sisters.) “I mean that one moiety, or half.of the said five-sixths or eleven-twelfths of the said residue, or balance of my said estate, shall be conveyed unto the child or children of my said sister, Mary Parr, then alive, share and share alike; and the other moiety or half of said five-sixths orjeleven-twelfths of the said residue, or balance of my estate, unto the child or children of my sister, Marcella Caroline Corbin, share and share alike.” The increase of the estate was intended to be included, subject to the limitations, conditions, and restrictions specified in relation to the six favorite negroes, “which conveyances shall become null and void, if the intentions of my will, in relation to my said servants, shall be opposed or neglected by the persons thus taking said property.” The will further provided, that if either the brother or sisters should die, leaving a child' or children, such child should take the share which the parent would have taken if alive; and, in order to dispose of the income, until the death of the last surviving sister or brother, it was provided, that if the brother should die first, one-sixth of the net annual income, until the death of the last surviving sister, should be paid to his children, if more than one; if only one, then one-twelfth; but if one o'f the sisters should die, her children should take their mother’s share, until the death of the last survivor of the three; if the brother should die leaving no child, the provision made for his child or children was to revert, and become a part of the residuary estate, to be disposed of as provided for the sisters and their children. The property was not to be subject to the debts of the brother or sisters, or the husbands of the sisters. If any beneficiary should oppose the intention of the testator relative to said six favorite slaves, the portion which would come, under said will, to such person opposing said intention, was devised to the Theological Seminary of the Lutheran Church of South Carolina, provided said corporation would carry out his desires; and if said church would not do so, then such portion was devised over to the Commissioners of the Free Schools for Lexington District,, who. were to become trustees to carry out testator’s intentions in regard to said six negroes. The will imposed certain duties on the trustees in relation to the care and management of certain portions of the property, for the use of said six negroes, which must necessarily have continued for a long series of years, and was such “a troublesome office” that the trustees declined to act.

Samuel D. Corbin, the husband of Mrs. Marcella C. Cor-bin, was appointed by the proper court to carry out the provisions of the will, and meeting with difficulties, filed a bill in the Courts of South Carolina, for the distribution of the estate among the legatees, according to their respective shares under the will. • Chancellor Johnson, before whom the case was heard, refused to grant the prayer of the bill, on the ground that to do so “would be making a will for the testator, a power which this Court disdains,” and he dismissed the bilk This ruling was excepted to, and the Supreme Court of South Carolina reversed the decision of the Chancellor, and thereupon a division of the property was had, under the direction of the Court of Chancery. This division took place about January, 1840. In the division, the children of Samuel Saylor received one-sixth of the residuum of the estate, (the specific devises in favor of said six negroes being strictly carried out,) and the other five-sixths being equally divided between Mrs. Parr and Mrs. Corbin. The whole transaction seems to have been treated by the Court and the parties as a final distribution and settlement of the affairs of the estate of John J. Saylor. The negroes were provided for, according to the terms of his will; and the residue of his property was divided between his sisters and the children of his brother, in the proportion he had intended. The division, however, took place during the-lives of the sisters, and not after their deaths, as the testator intended that itshould be. His brother was dead. The negroes were sold for distribution, and Samuel P. Corbin purchased just about as many of them as were coming to his -wife and children, and brought them to Georgia, and kept them until his death, and they remained in the hands of his executor until they'were emancipated. Samuel P. Corbin died in Taylor county, Georgia, about the latter part of November, 1862, having executed a will, appointing his brother, Henry L. Corbin, as his executor, who qualified as such, and filed a bill for direction, in Crawford Superior Court, alleging the emancipation of the slaves', and the insolvency of the estate in consequence thereof; and praying that the various creditors might be required to prove their demands, that the Court might adjudicate and settle the amount and order of payment of the. various claims against the estate, etc. An injunction was granted to restrain the creditors from proceeding at law. During the progress of the case, the whole matter was referred to W. K. deGraffenried, Esq., Master in Chancery, who was directed to report “the state of the account between said Henry L. Corbin and the estate, and between him and said contestants and claimants • and creditors,” and report his decisions upon all questions of law and fact arising between the parties. Said Master in Chancery proceeded to take the account, and made his report to the Court, and the Court, after hearing the exceptions, confirmed the report; and to the judgment affirming the report, various exceptions were made and brought to this Court.

We do not propose to notice all the questions made in the record, which is very voluminous, and contains the record of the distribution of Saylor’s estate, in South Carolina, the bill filed by Samuel P. Corbin for that purpose, and all the proceedings had therein, then the will of Mrs. Parr, the bill filed to set asid'e certain devises therein, and the distribution of her estate, with the long accounts of the representatives of that estáte, and the testimony taken in these two bills, then the proceedings in relation to the estate belonging to Ella Gray, (now Mrs. Caruthers,) of which Samuel P. Corbin was guardian, and in relation to the actings and doings of the present executor. We will notice those points which we deem material for the adjustment of the rights of the respective parties, in relation to the property belonging to the estate of said Corbin.

1. It was insisted that the will of John J. Saylor, by the laws of South Carolina, was invalid, that it attempted to manumit certain slaves, and was, therefore, null and void. We have looked into the provisions of the laws of South Carolina on this subject, and we think that, so far as the will attempted to emancipate the slaves was concerned, this portion of it, by the laws of that State, as they existed in 1835, was invalid; but other portions of the will were not thereby affected. Consequently, while the provisions of the will, in favor of the practical manumission of the slaves, could not have been enforced, if resisted, yet the other bequests in the will were valid.

2. Again, it was insisted that Saylor’s will, being contrary to the then declared policy of the laws of this State, cannot be enforced by our laws, that admitting the will to be valid in all its provisions, according to the laws of South Carolina, yet, to enforce it in Georgia, would be contrary to the policy, and prejudicial to the interests, of this State. Rev. Code, secs. 9 and 2696. We fully recognize the rule here contended for, that this State will not enforce the laws of another State, which contravene the policy of our laws; but this case does not fall within the rule. Plere a will was made in South Carolina, which, according to the decision of the highest tribunal known to the laws of that State, conferred certain rights on certain parties, irrespective of the provisions which, in our courts, would render the will illegal. We are not called upon to enforce any illegal provisions of the will. The question of emancipation is not, in any way, before us. Here is a judgment of our sister- State, by a court having jurisdiction of the parties and the subject matter, and the question is, shall the judgment of that court be respected by our courts? Shall we mete out to the parties the rights which, according to the decision of the Courts of our sister State, they have been decided to be entitled to ? Were we called upon to enforce the illegal provisions of this will, then other questions might arise. But such is not the case. The simple question is, whether the judgment of that Court shall be .respected or not? If that judgment is to be respected, what is the effect? The property of John J. Sayloy was, by a court of competent jurisdiction, divided under his will; and that judgment must conclude the rights of the parties. What was the effect of that judgment? It was that one-half of the residue of the five-sixths of the John J. Saylor estate belonged absolutely to Mrs. Corbin and her children, under this will, and the other half to Mrs. Parr and her children, absolutely. There was an administration, and a division of the property, under the will, according to the judgment of a court of competent jurisdiction.

Mrs. Parr survived all her children, and then died, leaving a will, portions of which were set aside by the proper court, and the property divided among her heirs-at-law, Mrs. Corbin and Samuel Saylor’s children. The portion which Samuel P. Corbin received, in right of his wife, from Mrs. Parr’s estate, was received as heir-at-law, and not as legatee under Saylor’s will. Consequently, the property was his, absolutely, without liability to account to any one. The conclusions, then, to which we come, on this branch of the case, are, that the division made of the Saylor estate by the Court of Equity in South Carolina, between Mrs. Parr and Mrs-. Cor-bin, was legal and valid, vesting one portion, or half of the five-sixths, in Mrs. Parr and her children, and the other in' Mrs. Corbin and her children, respectively, according to the division as then made. Each ceased to have any interest in the property allotted to the other; and when the property of Mrs. Parr was paid to Samuel P. Corbin, after her death, it was freed from any trust whatever connected with Saylor’s will. Consequently, the children of Samuel P. Corbin have no claim against his estate, on account of the Mrs. Parr half of the five-sixths of the residuum of Saylor’s estate, nor on account of the property received from her representatives after her death. They have a claim for the half paid to him in their right, and that of their mother. The negroes willed by Saylor were sold for distribution, and Samuel P. Corbin purchased enough of them to make the portion due his wife and children, or just about enough for that purpose. The sale of the negroes was a method adopted for division, and the negroes received by said Corbin belonged to his wife during her life, and at her death, to her children. The negroes belonged to the wife and children; and when they were emancipated, the loss must fall upon the children, the owners at the time. Hand vs. Armstrong, 34 Ga. R., 232.

3. Is the claim of Samuel P. Corbin’s children such a debt as to be entitled to a priority of payment in the distribution of the assets of his'estate among his creditors? Is it a debt due by the deceased, as executor, administrator or guardian, or as trustee? Rev. Code, sec. 2312, and par. 4-, of sec. 2494. It is claimed that Corbin was both executor and trustee in South Carolina, and-' that, as such, this trust debt must have a higher dignity in the order of the payment of debts than simple contract debts. Is a foreign trustee embraced by the words of the Statute?' The original Act was passed, 18th February, 1799. Cobb’s Dig., 311 and 288. It is entitled “ An Act for the better protection and security of orphans, and their estates.” The. first section makes it the duty of the Clerks of the Courts of Ordinary to enter in a book the names of all executors, administrators and guardians, appointed in their several counties, with the names- of their securities, which book should, at all times, be subject to examination by the Court, or other persons interested. The second section makes it the duty of such fiduciaries to make returns, showing the conditions of the estates, and authorizes the Court to take such steps as may be thought fit to protect the rights of parties interested. The third requires annual returns of the condition of the. estates, and authorizes process to issue against delinquents. The fourth section allows guardians reasonable disbursements on account of their wards, and authorizes the binding out of wards, in case the annual profits of the estate are not sufficient for the education and maintenance of the wards. Then comes the fifth, which says: “When any guardian, executor or administrator, chargeable with the estate of any orphan or deceased person, to him, her, or them committed, shall die so chargeable, his," her, or their executors or administrators shall be compelled to pay out of his, her, or their estate, so much as shall, appear to be due to the estate of such orphan or deceased person, before any other debt of such testator or intestate.” The word “trustee” is not in this Act. This was amended by the Act of February, 1854, pamph. Acts, p. 70, which amends the before recited Act of 1799, and says: “ That from and after the passage of this Act, the provisions of the fifth section of the abo've recited Act, be, and the same are hereby extended, and made applicable to the estates of all trustees in this State, who may have converted to their own use, wasted, destroyed, or died chargeable to the estates of their eestui que trusts ; provided said trustees have had the actual possession, control, and management of the property vested in them as such.” Take the whole of these two Acts together, and is it not most manifest that they apply to domestic, and not to foreign, trustees? The whole scope of the Act of 1799, is in relation to persons appointed by the Court of Ordinary, to act in a fiduciary character; and the object of the Act was to protect the rights of all persons who had to l'ely upon the Court for the selection of agents to transact their affairs; and then, by the Act of 1854, the provisions of the fifth section are “ extended and made applicable to the estates of trustees in this State.” This is a legislative interpretation, that the whole Act intended to apply to domestic trustees, to such as are made so by the laws “ in this State.” Is not the general sense of the words, executors, administrators, etc., applicable to such as are appointed by our own laws ? Our laws do not recognize foreign executors, etc., as such, at all; or rather, they did not do so prior to the Act of 1850. Cobb’s Dig., 341. (The Rev. Code, secs. 2573-6, now authorizes them to sue in our courts.) See Davis vs. Smith, 5 Ga. R., 295; The South-Western Railroad Company vs. Paulk, 24 Ga. R., 370; Vaughan vs. Northup, 15 Pet. R., 1; Sto. Confl. L., sec. 513; Jackson vs. Johnson, 34 Ga. R., 511. As the law did not recognize the existence of foreign trustees, at the time of the passage of the Act of 1799, is not this a strong reason for construing the Act to apply to such persons of the classes named as were recognized by the law as belonging to those classes? We think so, most clearly. We think too, we can see good reasons for allowing this preference as to the estates of domestic trustees, which do not apply to foreign ones.

Samuel P. Corbin died about the 28th November, 1862, and, therefore, before the Code went into effect. This case must be decided according to the provisions of the statutes existing prior to the Code. We think, however, that the same reasons apply to the Code, and that the sections therein must be construed to mean just what the law did previously. See sec. 2312, and par. 4, of sec. 2494. From all which, it follows that the claim of Corbin’s children against his estate, is not such a trust debt as is entitled to a priority in the payment of the debts of the estate.

Samuel P. Corbin, in his life time, having been the guardian of Ella Gray, (now Mrs. Caruthers,) appointed in this State, and having died so chargeable, whatever may be found due on this claim is properly entitled to a priority in the payment of the debts, as contemplated by the Statute.

Sundry payments were made to Caruthers and wife in “Confederate Treasury Notes,” by the executor. These payments were valid, as against the parties receiving them. Caruthers and wife were competent to contract for, and receive in payment, anything that might be agreed upon by them and the debtor. Freeman vs. Bass, 34 Ga. R., 364. The amounts received by Caruthers and wife as payments, must be charged against them, in a settlement of the estate, at the nominal amount so received. They agreed so to receive the currency, and must be bound by their agreement.

As between the executor and the estate, the executor cannot advance his own “Confederate notes” in payment of the debts of the estate, and be allowed on settlement, the full nominal amount, notwithstanding the “notes” were worth but five cents in the dollar. The executor must account for all the profits which have accrued in his time’ on account of the estate. If he compounds debts or mortgages,' or buys them in for less than is due upon them, he shall not take the benefit of it himself, but other creditors and legatees shall have the advantage of it. If an executor take upon himself to act with regard to the testator’s property, in any other manner than the trust requires, if there be a loss, he must replace it; and any gain will be for the benefit of the cestui que trust. 2 Hill on Ex., 1566-7. It is his duty to act for the best interests of the estate, and whatever. he can save in managing the business of the estate shall go to the beneficiaries under the will. — lb. He can not use his'trust to promote his own personal interest.

It was insisted that the money belonging to Mrs. Corbin and children was paid for the Crowell place, and the children seek’to follow their funds into this land, and claim the land. There is no doubt about the right of a beneficiary of a trust estate to follow the funds wherever they can be traced, and affirm or reject any unauthorized investment by the trustee. Eev. Code, sec. 2307 ; 2 Hill, on Ex., 1765.

But here the Master has found against this claim, and we can not say that his decision is so strongly and decidedly against the weight of the evidence as to require us to reverse his ruling on this point. To authorize the taking of property purchased in the name of the trustee, it should clearly appear that the trust funds were appropriated to the purpose of the purchase. 2 Hill. on Ex., 1765. The proof in this case does not come up to this rule.

The same may be said as to the items for the board of Ella Gray, and for amounts paid for overseer’s wages on Ella Gray’s plantation. We can not say that the report of the Master on these items is decidedly and strongly against the weight of the evidence. The rule laid down by the Master, of taking the highest estimate of the value of cotton in the year of production, and the largest size bales, in- making up the amount against S. P. Corbin, as guardian, is pretty stringent ; but, perhaps, it would be wrong, in a case like this, to adopt a more lenient one. Here the guardian failed to make the returns required by law, and thus neglected his duty. He had the means necessary, and the law made it his duty to show the true amount which came into his hands. Failing to do so, he was in default, and under the circumstances, perhaps, it would not be well to lay down a different rule.

We have thus noticed all the points we deem material in these cross bills of exceptions, and laid down the rules which should govern in ascertaining the rights of the respective parties. We reverse the judgment on the grounds intimated in this opinion.

Judgment reversed.

Warner, C. J., concurred, but wrote out no opinion.