Myers v. Bryson ( 1893 )

Opinion by

Mr. Justice Mitchell,

We are unable to agree with the master and the learned court below, that this is a bill for account only, as a basis for future settlement. The second prayer is for an account “in order that a final settlement of said estate may be made, and your orators receive whatever they may be entitled to of the same.” This is substantially a prayer for a termination of the trust, settlement, and distribution. But even if this had been wanting, a court of equity having taken jurisdiction of the case up to this point and finding it ready for final adjudication, would ordinarily go on under the prayer for further relief, and make an end of the litigation.

This result however might be modified should it appear that the purpose of the trust, the payment of the debts of Thomas B. Bryson Sr. has not yet been completed. There is no express finding by the master on this point, but the length of time since his death, the absence of any reference to existing creditors in the bill, answer, or master’s report, and the statement of account by both master and court, justify us in assuming, for the present purpose of this case, that the debts of Bryson Sr. have been settled.

Viewing the bill as one for distribution, the representative of Margaret Bryson, the widow, should have been made party. There was no demurrer however to the omission to do so, and under the circumstances it is not a fatal defect. It may still be done by amendment should it appear to be necessary, but taking into consideration the facts as stated by the court, that the widow has been dead more than six years, that she died intestate, without debts or estate other than her interest in the subject of this litigation, and that her heirs and distributees under the intestate law are all parties now before the court, we think-that unless some interest or party, not now represented should appear, the court may proceed as if that was done which should have been done, and decree distribution of her interest, as if it had been adjusted and set apart to an administrator, taking refunding bonds from the distributees should it be thought necessary for the protection of accountants and possible creditors.

Coming now to the account we must sustain the exception to the surcharge for rent of the dwelling. Under any view, if rent was to be charged, a credit should be given as an item of expense in carrying on the business: But it is clearly outside of the trust, which is limited to the business and the personal estate other than household furniture. There was a power of sale, but until that was exercised the trust did not include the real estate, and if anj *ent was received for the other house subsequently sold, it came into the account as the proceeds of the sale did, because it was money had and received to the use of the cestuis que trust and not because .the trust extended to the realty out of which it came. All the children were tenants in common of the dwelling house, subject to their mother’s dower, and, by agreement of all, it was to continue as a home for the family, with no charge to any of them for occupancy, and of course none for rent of the business portion which was used for their common benefit.

We must also sustain the exception to the imposition of the costs on the accountants. They were not in any more than nominal default. The agreement bound them “ to account to the family once in every six months,” but this was not an absolute or peremptory duty, unless the family wanted an account, and this they never did. No demand was made until the present suit, and two of the three sisters have expressly refused to join now. It is said that the accounts of the business were not kept systematically, or with reference to a settlement with the family. No fraud is charged however, and as to the management of the business “ as if it was their own,” that is what the agreement in express terms authorized the brothers to do. It is true that this management has been retained apparently longer than the purpose of the trust required, and that the time has come when the estate ought to be settled up and distributed, but on the other hand the family has had its living for twelve years, and now has the dwelling and the assets of the business, which the agreement shows that in 1881 they were or thought they were in danger of losing. In view of this general result a little arbitrariness on the part of the brothers should be overlooked, and in the entire absence of bad faith it would be highly inequitable to put on them the costs of this proceeding. The expenses should come out of the estate.

We have not been convinced that the other objections to the account as stated by the court are valid. As distribution is to be made however, the account should be brought down to date. The items of “ assets,” subject to such changes as may be necessary in bringing down the account, may be taken by the accountants at the valuation fixed by the court, or if they elect not to do this, then they must dispose of them and bring the proceeds into the account as money received.

On final decree winding up the trust and making distribution, the rights of occupancy of the dwelling house under the agreement will terminate, and thereafter the parties will hold it as tenants in common, with such rights as appertain to that estate.

Decree reversed, and record remitted for re-statement of account, and distribution, in accordance with this opinion.

Note. We may add, though not strictly part of our judicial duty, that if the parties, with their counsel, would meet together in the same commendable spirit of family harmony in which they made the agreement of 1881, they ought to be able to settle this whole matter amicably with no further delay or expense. The complainant Mrs. Myers should recollect that her brothers’ management has saved for her the interest she now has in the house and the assets, while as far as appears she has not had the’same support out of the business and occupancy of the house, as the others of the family during this long period, and they should bear in mind therefore that though this does not vary.her legal rights under the agreement, it does give her a strong moral claim to liberal consideration in the settlement.