Hall v. Bryan , 1878 Md. LEXIS 153 ( 1878 )

Bowie, J.,

delivered the opinion of the Court.

The appellee sued the appellant in an action on the case, in the Circuit Court for Anne Arundel County.

The plaintiff in the first and second counts of his narr. declares specially to the effect following, viz: that one Margaret Thornburgh in her life time, made her last will, and thereby devised certain funds to one Henry Webster, upon certain trusts, for certain persons therein named, with power to invest and re-invest the same; that the said Webster loaned to the appellant’s testator large sums of money, (a part of said trust funds,) in consideration of the first of which loans, Estep Hall the appellant’s testator, made and delivered to the said Webster his promissory note dated the 5th of March, 1863, whereby he promised to pay to the order of the payee, as trustee of Sarah T. Hall, on demand after date, one thousand and thirty-seven dollars and fifty cents, with interest from date, for value received; and afterwards in consideration of another loan, from said Webster to said Hall, the said Hall by his certain other promissory note, dated October 31st, 1864, promised to pay to the order of the said Henry Webster, as trustee of Sarah T. Hall, on demand after date, thirty-four hundred and ninety dollars, with interest from date, for value received.

It is further averred that Henry Webster departed this life, and that the said Estep Hall, after the death of the said Henry Webster, also departed this life having made his last will and testament, whereby be appointed tbe appellant bis executor; that afterwards tbe Circuit Court of Baltimore City, in a case therein pending, by its decree appointed the appellee trustee, in tbe place of said Henry Webster, deceased, and by its order authorized and directed the appellee to collect tbe said notes. That the said notes were due and unpaid.

To these special counts were added, tbe common counts for money loaned, etc., and account stated by the defendant’s testator in bis life-time, and other counts against the defendant as executor, upon promises made by him.

Tbe defendant pleaded to tbe counts against his testator ; that his testator never was indebted as alleged, and never promised as alleged, and tbe Statute of Limitations; and. tbe same pleas to tbe counts against himself, as executor.

No exception has been taken to tbe pleadings or admissibility of tbe evidence, but tbe points raised by the prayers of tbe appellant and appellee, are tbe right of the plaintiff as trustee to recover, assuming tbe facts alleged in tbe bill of exceptions to be true, and tbe sufficiency of the admissions, or conversations of the defendant’s testator, to remove tbe bar of tbe Statute of Limitations, pleaded by bis executor.

Tbe first question involves tbe. incidental one, whether tbe nature and extent of tbe trust can be inquired into collaterally in this case.

It is insisted by tbe appellant, that according to the true construction of the will of Margaret Thornburgh, tbe appellant’s testator was entitled to the funds secured by the notes upon tbe death of bis wife intestate, and without children; or if not, that tbe fund became the property of third persons, “proprio jure,” without tbe intervention of a trustee, and the trust was as far as these notes are involved, “functus oficio.”

The appellee contends, that Estep Hall, being a party to the case in equity, in which he was appointed trustee, it was a judicial determination by the' Court that the trust was still subsisting, so far as related to the property bequeathed to Sarah T. Hall, and that it was proper the trust should be executed, and these questions are not now open in this suit.

The object of the bill, in the case referred to, was the appointment of a trustee or trustees, to hold the property and execute the trusts in behalf of the several cestuis que use, named in the will, in the place of Henry Webster who had since died.'

The bill alleged that Henry Webster, the trustee named in the will of Margaret Thornburgh, received from her executors, and took into his possession sundry moneys, stocks and bonds of great value for the benefit of the persons named as cestuis que trust, and while holding them for their benefit died, etc. And the complainants charged, they were advised it was competent for them to apply to the Court to appoint a trustee, or several trustees, in the stead of the deceased trustee, to hold the said property for their benefit according to tlie terms of the will of Margaret Thornburgh, deceased, wherefore, they prayed a trustee, or trustees, might be appointed ibr said purposes.

The decree conforming to the prayer of the bill, appointed several persons trustees for the different cestuis que use ; among others, Estep Hall was appointed trustee in the place of Henry Webster, deceased, under the will of Margaret Thornburgh, so far as related to the property bequeathed to Sarah T. Hall, wife of the said Estep Hall.

Dr. Hall dying, the appellee, by a subsequent decretal order was substituted in his place.

There was no question before the Court involving the interpretation of Margaret Thornburgh’s will, and the decree settled nothing further than the appointment of ' the trustees for the several beneficiaries, without determining their respective rights.

By virtue of the decree and subsequent decretal order, the appellee is placed in the stead of Henry Webster, and authorized and required to collect the dioses in action due him as trustee of Sarah T. Hall. The decree operates pro tanto, as an evidence of title, by operation of law; the trustee appointed by the Court, succeeding “virtute officii,” to the dioses in action made payable to the testamentary trustee of Sarah T. Hall.

If the original parties to the notes were living, Dr. Estep Hall could not resist at law their payment, upon the ground that the fund had become his by survivorship.

All that is necessary to maintain the action at law, is to prove the averments of the narr. If they were insufficient, the defendant should have demurred, or, the defendant must set up.some matter aliunde, by which the debt has been satisfied or extinguished at law.

The matter sought to be established by the defendant's construction of the will of Margaret Thornburgh, does not extinguish the debt or satisfy it, hut tends to prove the fund is to enure to the benefit of another beneficiary.

The decision of this question belongs to another tribunal, one in which all the persons who are or may he interested should be made parties.

The notes in the hands of the trustee may yet be subject to claims against Sarah T. Hall, or other charges prior to the rights of the subsequent cestuis que trust, named in the will.

The trust in this case was impressed upon the property in question, by the will, the terms of the dioses in action and the decree appointing the appellee.

In the case of Hanson and Wife vs. Worthington, 12 Md., 139, this Court said, they regarded the probate of the will and the taking out of letters testamentary, by Worthington, as a sufficient evidence of the acceptance of the trust created by the will.

In Smith and Barber, Ex. vs. Darby, 39 Md., 270, it was held, the acceptance of a note for a sum of money payable to one, to be held by the payee, in trust for another, constituted an irrevocable trust.

The question as to the duration of the estate of the trustees according to the best authorities, can seldom arise where' the subject is personal estate, because the whole legal estate is vested in the trustees, without any words of limitation, and will continue in them until divested by legal transfer or assignment. Hill on Trustees, 248, (marg.)

The accounts of Webster and McPherson, executors of Margaret Thornburgh, and the receipt of Henry Webster, trustee of Sarah T. Hall, showed the personal estate which came to the latter to be invested for the benefit of the cestui que use, and the notes of Estep Hall for tbe money in controversy payable to the order of Henry Webster, trustee of Sarah T. Hall, evidence tbe continuance of the investment of the fund for the benefit of the cestui que use.

The legal estate in these notes devolved on the executor of Henry Webster, subject to tbe same uses, until it was divested and transfered by the decree to the appellee as his successor.

The Circuit Court of Baltimore City, had full power and authority as a Court of equity to appoint a trustee, or trustees in the place of the deceased trustee.

In the case of Denton vs. Denton, 17 Md., 407, this Court recognized the principle before announced in several cases in this State, that a cestui que trust has no standing in a Court of law, in “propria persona,” citing Green vs. Johnson, 3 G. & J., 389, and declared, that although it was undoubtedly true, that when a trust has been created in personalty, and all the purposes of the trust have ceased, or are at an end, the absolute estate is in the person entitled to the last use, yet, this must depend on the plain intent and meaning of the instrument creating the trust.

It was further there decided, that if the original trustee were living, and asserting his title to the property in a. Court of law, it could hardly be questioned that his right would be supported; and the same principle would apply to a new trustee if one had been appointed in his place.

It is, therefore, unnecessary and' premature to decide whether by the true construction of the will, the fund belongs to the estate of Estep Hall, or to the residuary legatees named after him, if it were proper in a Court of law to determine that question.

From the preceding, it is clear that the right of action was vested in the trustee by the operation of the decree, in the case of Henderson and others vs. William Webster, Ex. of Henry Webster.

The plaintiff’s first prayer, after recapitulating substantially all the evidence offered to maintain the issues on his part, affirms his right to recover generally.

The second and third prayers, affirm the sufficiency of the conversations of Dr. Estep Hall, with the witness Webster, as detailed by him, to remove the bar of the Statute of Limitations.

In the second, all the declarations and admissions made by Hall in his several conversations with the witness Webster, are relied on to remove the bar of the Statute of Limitations.

The third prayer, relies on the first conversation alone,, between Dr. E. Hall and the witness, to remove the bar.

It is insisted by the appellant, that neither of the supposed admissions, nor both together, constitute such an acknowledgment or promise, as is sufficient to remove the bar.

This Court has so frequently determined what is sufficient to take a case out of the Statute of Limitations, that it would be superfluous to do more than refer to some of the more recent decisions, to dispose of this point. In Knight vs. House, 29 Md., 194, it is said, “an express promise within three years before bringing of the action, is not necessary to remove the bar of the Statute of Limitations ; a recognition of the existence of the debt is sufficient.”

(Decided 19th December, 1878.)

Again, in 33 Md., 511, it is declared, “the law is well settled in Maryland, that the acknowledgment by the defendant of a present subsisting debt, or a promise to pay, is sufficient to remove the bar of the Statute.” See also, Sprogle vs. Allen, 38 Md., 331.

Each of the conversations detailed by the witness, Webster, as occurring between Dr. Hall and himself’ was an acknowledgment of a present subsisting debt, accompanied with a strong implied assurance, that he would secure its payment.

It would in our judgment, be a useless consumption of time and space, to endeavor to enforce what seems to us self-evident.

The prayers of the appellant being substantially the converse of the propositions contained in those of the appellee, the affirmance of the latter, is in effect a rejection of the former. For these reasons the judgment below will be affirmed.

Judgment affirmed.