Robinson v. Townshend , 3 G. & J. 413 ( 1831 )

Buchanajv, Oh. J.,

delivered the opinion of the court.

The bill alleging the annuity bequeathed to the complainant, Anne Maria Townshend, by her father, William. Duncan, to be a rent charge upon the land devised by the same ancestor, to his two other children, William Joseph Bend Duncan and Caroline Duncan, both infants of tender years, seeks a sale of the laud so supposed to be charged for the payment of the arrearages of the annuity stated to he due, and an investment of the surplus proceeds of sale, to meet the accruing annuity as it shall become due. Deborah Duncan, now dead, the widow of William Duncan the testator, administered on his estate, and was the guardian of the infant devisees, and on her death, Joseph Robinson was appointed guardian to the children. The bill as amended, is against the two infant devisees, and Joseph Robinson their guardian, and John Iglehart, the administrator of the administrator u. b. n. of the testator, William Duncan. Robinson and Iglehart, neither of them answered the bill, and the infant defendants in their answer, neither deny nor admit any of its contents, but say they know nothing of them, and put the complainants to proof, &c. It appears from the proof taken by the auditor, that from the time of the death of the testator, Deborah Duncan, who was the guardian of the children, received the rents and profits until her death, and that from the time of her death, they have been received by Robinson, the present guardian.

The chancellor in his decree, has taken the bill pro confesso, as against Robinson, and dismissed it as against Iglehart, and directed that the infant defendants, or Robinson their guardian, shall pay to the complainants out of the estate of his wards, or bring into chancery, to be paid to them, the amount of the annuity accruing during the life of Deborah Duncan, their former guardian, and stated by the auditor to remain unpaid, with interest, and that Robinson shall pay to the complainants, out of the property of his wards in his hands, if there he any, or if not, out of His own estate, or bring into the Court of Chancery to be paid to them, the amount of the annuity accruing since the death of Deborah Duncan, and stated by the auditor to remain unpaid, with interest and costs of süit. Which decree, independent of the objection urged, that it is not consistent with the relief sought by the bill, but of a different character, that being for a sale of the land on the ground that the annuity was a charge upon the land, cannot wc think bo sustained.

If we have taken a correct view of the subject, it was passed upon the evidence taken by the auditor, and not upon the case made by the bill. The bill contains no allegation or suggestion, of the receipt of the rents and profits by the infant defendants, or either of their guardians, or of the annual value of the land, or of the application of the rents and profits of any part of them, for the benefit of the infants, by either of their guardians. Nor is either of the defendants called upon to make any answer or disclosure in relation to the annual value of the' land, or to the receipt, or amount, or application of the rents and profits: there is therefore no issue, to which the proof in relation to the receipt of the rents and profits, and to the annual value of the land upon which the annuity claimed is alleged to be a charge, is applicable, and consequently none to support the decree, however correct it might have been, if there was such an issué in the case. The neglect of the defendant Robinson, to answer, amounts to an admission only of thé allegations in the bill, and nothing more; and thé answer of the infant' defendants, calling upon thé complainants to prevé the bill, only puts them to the proof of what is charged in the bill, and entitles them only to a decree on the case made in the bill, when proved. If it was necéssary to prevé thé receipt of the rents and profits, and the amount, by the infant defendants, or their guardians respectively, or the annual value of the land, to entitle the complainants to the relief decreed, it was equally necessary to avér in the bill such receipt, or annual value, to make a case in the pleadings for such a decree.

The annuity bequeathed to Anne Maria, one of the complainants, is not a rent charged; it is directed' to be paid out of the profits of the real estate, and there is no right or power of distress given ; and there is no proof in the cause that any portion of the rents and profits was ever applied by either of the guardians, to the benefit of the infant defendants: nor does it appear that any personal property belonging to them ever came to the hands of the defendant, Robinson, or that they have any. Deborah Duncan, the former guardian, may .have applied the whole .of the rents and profits received by her, (except so much as was applied to the discharge of the annuity,) to her own purposes, to'the prejudice of the infant defendants ; and the defendant, Robinson, may have done the same, and they are by the decree, subjected to the discharge of the whole of the annuity, accruing from the death of the testator, and remaining unpaid, to be paid by them or by the defendant, Robinson^out of their estate, which is not directed to be sold. So far as the decree is against Robinson, and he is directed to pay the money out of the estate of the infant defendants, if he has in his hands no personal property belonging to them, and none should come into his hands, the decree cannot be complied with, as he is not authorised to sell the real estate. And as to that amount of the annuity which has accrued since the death of Deborah Duncan, and remains unpaid, we think that the defendant, Robinson, should not he made to pay it out of the property of the infant defendants, hut his own, if he has appropriated no part of the rents and profits received by him for their benefit, but applied the whole to his own purposes, which for any thing appearing in the record, may have been done.

We do not mean to say, that the complainants would not be entitled to relief on a proper case, made against the proper parties, and supported by appropriate proof. All we do say is, that in our opinion, this is not such a case, and that the decree must he reversed, with costs in both courts.

DECREE REVERSED.