Callis v. Ridout , 7 G. & J. 1 ( 1834 )

Stephen Judge

delivered the opinion of the court.

The principle is well established, that it is the peculiar province of a court of equity, to enforce the performance of trusts, when applied to for that purpose by any person interested ; and in general, when it becomes necessary to appoint a trustee to prevent a failure of a trust, and to cany the same into execution, the court has unquestionable jurisdiction to make such appointment for that purpose. But we think that the Chancellor has erred in this case by appointing a trustee to make the sale prayed for by the complainants in their bill. The act of Assembly creating the trust for the benefit of the creditors of Addison and Callis, has directed the execution, or fulfilment of it, by certain.commissioners, in a special and particular manner.

. The creditors entitled to the benefit of its provisions, are described in the law, and the manner of authenticating their claims is also designated. It directs that they' shall be established to the satisfaction of the commissioners, on or before a particular day, and that only so much of the tract or parcel of land called Barnaby Manor shall be sold, as may be necessary to pay the claims so established. Hence it appeared, that the law clothed the commissioners with a special power, and that their manner of executing the trust was particularly defined. The law also authorised them to fill up any vacancy which might occur, by death, resignation, or refusal to act. It appears that the trust was accepted by the commissioners, and that a vacancy has occurred by the death of one of their number.

We think that the Chancellor should have compelled an execution of the trust by the commissioners named in the law, and that the vacancy which occurred, ought to have been filled up by the survivors. We also think that prior to the making of any sale, an account ought to he taken of the amount of the debts due by Addison and Callis, to satisfy which, a sale should be decreed, and that those debts should have been proved and established in the manner prescribed by the law. It is also the opinion of this court, that the purchase made by George Semmes of a part of the property, devoted by the law, to the fulfilment of the trust, ought not to be permitted to enure to his benefit, but that the same ought to be applied to the objects of the trust, as far as may be necessary after reimbursing to him the amount of his purchase money, and all proper and necessary expenses. The proceeds of sale when made, should either be applied by the commissioners, to the payment of the creditors entitled to receive the same, or be brought into the court of Chancery, to he applied, and distributed under its direction. We therefore think that the decree of the Chancellor ought to be reversed, and the cause sent hack, to be there proceeded in, according to the principles herein contained.

DECREE REVERSED WITH COSTS TO THE APPELLANTS IN THIS COURT.