Beal v. Crafton , 5 Ga. 301 ( 1848 )

By the Court.

Warner, J.

delivering the opinion.

When this case was before us, at a previous term of this Court, we ruled that Bennett Crafton, as the qualified executor of James Beal, deceased, was entitled to the possession of the- trust property, for the purpose of executing the trust devolved upon him, by the last will and testament of the testator. 1 Kelly, 332. It is now insisted that before a valid decree can be made, against the defendants, Walter Harris, one of the executors named in the will of James Beal, but who never qualified as such, and Samuel B. Crafton, one of the cestui que trusts, should be made parties. It does not appear from the record, that Harris is anything more than a mere debtor to the estate; that he borrowed a portion of the trust fund,' for which he. gave his note. It is true, he states, that being the only one of the executors, or trustees, who resided in the neighborhood of the deceased testator, he attended to the business of the estate, though concurrently with, and in subordination to, Robert Beal, the only qualified executor at that time. He never took upon himself the execution of the trusts, under the will. The complainant, Bennett Crafton, has qualified as executor, and has taken upon himself the execution of the trusts, declared by the testator’s will.

[1]. Nor do we think, Samuel B. Crafton, one of the cestui que trusts, under the will, was a necessary party in this case. The general rule laid down by Mr. Justice Story, as to parties, is stated be, “ that where any persons are made trustees for the payment of debts, and legacies, they may sustain a suit; either as plaintiffs or defendants, without bringing before the Court, the creditors or legatees for whom they are trustees, which, in many cases, would be impossible. And the rights of creditors, or legatees, for whom they are trustees, will be bound, by the decision of the Court, when fairly obtained, for or against the trustees. In such cases, the trustees, like executors, are supposed to represent the interests of all persons, creditors, or legatees.” Story Eq. Pleading, 14-5, sec. 150. Here Crafton is made by the will executor and trustee. We do not pretend to say, such a case might not be made, as would make it necessary for the cestui que trust to be made a party for the protection of his interest. -

[2.] In relation to the ademption of the land, on Germany’s creek, by a sale thereof by the testator, in his life time, we think the general proposition as stated by the Court below, is too broad ; although, as applicable to the state of facts exhibited by the record in this case, no injury was done to the plaintiff’s in error. The Court instructed the jury, “that nothing was to be received as evidence of such absolute sale of land by the testator, but his deed of conveyance, and no valid authority could be given to any other person, to effect such absolute sale, but the written power of attorney, wider the hand and seal of the testator, in his lifetime.” Had such a contract been proved, on the part of the testator, for the sale of the land, in his lifetime, though not proved by deed, under his hand and seal, as would have eniitled the vendee to a specific execution of such contract, in a Court of Equity, we apprehend the devise under the will, would be considered as defeated by such contract. But the facts which are relied on here, to defeat the devise under the will, are, that Robert Beal sold the land to Clark, and gave him a bond for titles in his own name for one half the land, and as agent for his father, the testator, for the other half. When the money was paid by the vendee, Robert Beal took up the bond, made a title to one half, and as executor and trustee for the other half, and Walter Harris and Bennett Crafton as trustees, joined in the deed with him, for the half of the land, which he purported to convey, as executor and trustee. Now there is no evidence, either parol or written, that Robert Beal had any authority from his father, James Beal, to act as his agent, in making sale of the land, or that he ever recognized such sale in his lifetime. The only evidence of Robert Beal’s agency, in making sale of the land, are his own acts, done without the assent, knowledge, or recognition of his father, in his lifetime, so far as the record informs us. If James Beal, the testator, made no contract, by himself or authorised agent, in his lifetime, for the sale of the land, the deed made by his qualified executor, and the two trustees, since his death, will not defeat his title, good at the time of his death, so as to prevent the land from passing to the cestui que trust, under his will. As it regards the loan of a portion of the trust fund to Harris, we concur in the view taken by the Court below, in its charge to the jury, that they ought to consider the loan as on the same footing with a loan made to any other person. Harris never qualified as executor, nor is there any evidence he accepted the trust under the will; although he attended to some of the business of the estate, in the neighborhood where the testator died, but concurrently with, and subordinate to, Robert Beal, the qualified executor.

[3.] With regard to the question of interest, we do not think the defendants in the Court below, have any just cause of complaint to the charge of the Court, as the same appears in the record before us.

The bequest of the Chavers and Longstreet notes, is a specific legacy, and the general rule is, that specific legacies, of a productive nature, bear interest from the death of the testator. ^*2 Williams on Executors, 876. The rule in respect to interest, as stated by the Court to the jury, was quite as favorably stated, for the defendants, as they had any right to expect under the law. Consequently, and for the reasons already given, in relation to the other grounds of error assigned upon the record, the judgment of the Court below must be affirmed.

* Note. — See Graybill Butts vs. Warren, 4 Ga. Sup Ct. Rep. where the Court have examined this question fully.