Lake v. Hardee , 57 Ga. 459 ( 1876 )

Jackson, Judge.

Thomas Hardee died in South Carolina possessed of an estate of lands and negro slaves, about the year 1857. Lake, who married one of his daughters, qualified as executor. The complainants were children of W. W. Hardee, son of the testator, and grand-children of the testator. W. W. Hardee died before his father. The estate was divided among the legatees, but the part allotted to W. W. Hardee was put in the executor’s hands to see whether the legacy lapsed on account of W. W. Hardee’s death before his father’s, aud to be held to answer to a bond given by W. W. Hardee, and indorsed by testator, if it was liable therefor. There was some dispute whether this division was temporary or permanent. Lake sold some lands which could not be equally divided, and before the war moved the share of complainants, in money and negroes, to Savannah, Georgia, where he lived. Before the war, and about its beginning, he sold some of the slaves belonging to this share of complainants’ father, and about 1863 invested money in other slaves. It was in dispute whether he bought the latter for himself or for the share he thus held for complainants, in certain contingencies, but he obtained no order of any court either to sell or to buy. In 1858 or 1859 he filed a bill in South Carolina to fix the rights of the parties and to settle the estate, but it was suffered to drag along until Beaufort fell into the federal hands during the war, and the court-house was burned and the records destroyed. After the war he made no effort to prosecute the bill or establish papers, or to settle the estate, but frequently said that he wished it was settled up. He never paid complainants a cent, and made no returns. Whereupon, in 1875, they brought their bill against him, as trustee, in Chatham county, Georgia, alleging the foregoing facts, and that he had converted their property to his own use, and calling upon him for an account and settlement. Lake answered the bill, admitting substantially the relation of the parties to him and the fact of division — temporary, he said — the removal to Georgia of the share so allotted to complainants’ father’s part, the sale of negroes and re-investment in negroes, not for himself, but for this share, and that they perished on his hands as the result of the war, and set up that the estate of Thomas Hardee was small and their share small, and used up in expenses, etc. He also sets up the pendency of his bill to settle the estate in Beaufort, South Carolina, and the statute of limitations of 1869. The court submitted to the jury certain questions, to which they brought in answers, but found no specific sum due to complainants, taking their responses as.a whole, one'answer to one question seemingly making it one amount, and the other another sum, and not fixing the amount of interest or providing that it be compounded. They also found that he had unintentionally disregarded his duties as trustee, and yet in another response they found that he had acted fraudulently and corruptly; and the court charged them that “if he had done anything in the management of the estate which he ought not to havfe done, or if he had left undone anything in his duty that he ought to have done,” this was tantamount to acting “fraudulently and corruptly,” so as to take the ease out of the statute of limitations of 1869; “that it was not necessary for the jury to find that he had acted intentionally wrong or with moral turpitude.” A motion for a new trial and to arrest the judgment were both made on various grounds; but we shall consider them only in the motion for a new trial, as the case is thereby controlled. The court overruled both motions, and Lake excepted.

1. The decisions of this court, as well as the act of 1875, allow the practice of submitting questions to the jury by the chancellor, to which they may answer specifically; but those questions must elicit all the facts necessary to found the decree on the verdict, and unless material facts, such as the exact amount due, be found by the jury, no decree can be legitimately rendered upon the verdict. The judge, and not the jury, will decide facts, if any other rule be adopted; but, by our system, the jury, in equity cases, find the facts, and the judge applies the equitable principles thereto. Both together make our court of equity when facts are in dispute.

2. It follows that if the verdict and decree do not harmonize, the decree must be set aside and a new trial ordered, because the judge has found facts which the jury did not, and thus usurped their peculiar province: 46 Georgia Reports, 362.

3. In this case, it cannot be ascertained what amount the jury meant to charge Lake with and to find against him. In one answer, it is one thing; in another answer, it is another amount; and we really cannot say which should be followed. The chancellor rendered a decree in this case, not following •either sum; he thus found the amount of defendant’s indebtedness himself, and passed upon that great fact in the cause alone. So, too, he directed that the interest should be. compounded at a certain rate and for a certain time; and this he put upon the ground of the fraudulent and corrupt management of the estate by the defendant, a fact on which the jury did not pass intelligently, finding confusedly thereon, under the charge of the court. We think the question of fraud and corruption one peculiarly within the province of the jury and to be passed upon by them ; and if found by them, it would be, perhaps, right to allow them to find compound interest against any trustee acting corruptly. It will be observed, however, that our statute provides only for the case of trustees appointed in this state: Code, sec. 2603.

4. This party, Lake, was an executor appointed in South Carolina. He was sued here as trustee only. We think that the bill should be amended so as to charge him explicitly as executor, and set out that as the character of his trust. The facts make that case, and the allegata and probata• ought, in some degree, to correspond.

5. If the bill were thus properly amended, we are clear that the facts make a strong case against him here in this forum. He moved the property here, converted it here, is no no longer in South Carolina and cannot be sued there; he has failed to prosecute his bill there to settle this estate; he has instituted no other proceeding there to do so; he must be, therefore, held responsible here in our courts, and relief will be decreed against him as executor here: 13 Georgia Reports, 140; 56 Ibid., 326. In so far as 34 Georgia Reports, 511, contravenes this principle, it will be found to be overruled in 56 Georgia Reports, 326, above cited; but in the case in 34 Georgia Reports it will be seen that no property was in this state, none had been wasted or converted here, and the administrator was on a mere visit here; resided in Alabama and was administering the estate there.

6. The limitation act of 1869 does not bar a minor; certainly not a minor with no guardian : 45 Georgia Reports, 478.

7. But even if these complainants were not all minors and did have guardians appointed here according to law — they residing here — yet if this executor had a bill pending against them in South Carolina to fix their equities and settle the estate with them, and this bill was undisposed of at the end of the war, they ought not to be barred by the act of 1869. It appears that this suit has never been disposed of. The executor pleads it in this case as pending now; yet he takes no steps to prosecute it by -establishing copies of the lost papers or burnt papers or otherwise. These complainants had the right to expect him to prosecute that bill which he brought himself, especially as he repeatedly told them that he wished the estate was settled up; and it would be hard indeed, if his own laches were imputed to them, and any limitation law be construed to bar them. We hold that this act does not bar their right to sue here, while they had any hope that he would proceed there; but as they waited patiently, without moving until 1875, and without his paying them a cent of what seems to be, by the verdict, their just demand upon him, we think that they are entitled to sue here and now.

8. But even if the right of action had accrued before 1865, so as to bar them, if the jury had found all the above facts against the complainants, still they would not be barred if Lake had acted fraudulently and corruptly. But upon this question the jury did not properly pass. The charge of the court took it from them. That charge made corruption mean any unintentional wrong act, or omission of any duty, by the executor, Lake. We do not so hold. We think those words mean more than mere constructive fraud. They mean actual fraud, actual, intentional wrong doing, willful and corrupt dealing, a purpose to impose upon his cestui que trust, and to benefit himself; and so we have, in effect, decided: 55 Georgia Reports, 15, and in the same case on the final hearing at the last term. We do not mean to say that the facts in this case do not show fraud and corruption in the sense of the act of 1869; we simply say that the jury must pass upon that issue, not the court; and that the court erred in not permitting the jury to pass upon the question of fraud in its true meaning in that act.

9. For the reasons that the decree does not follow the verdict; that the verdict is too uncertain to found a decree upon in the sum found against the executor, or rather trustee, as he is here charged, and that the jury have not been allowed to pass upon, and have not, in effect or substance, found that the executor acted fraudulently and corruptly, and moreover, that the allegata and probata would more appropriately consist and harmonize with the bill so amended as to. conform to the facts in respect to the nature of this trust, that nature being now clearly ascertained, we reluctantly senil the case back for a new trial.

Judgment reversed.