Stell's Appeal

Beil, J.

This is an ancient controversy; but, in our apprehension, not difficult of determination. The view we take of it relieves us from the necessity of considering the somewhat conflicting evidence upon the question whether Mr. Richards, in fact, assumed the duties of trustee, under the deeds executed by Robert E. Gray. Admitting that he did not, directly, disclaim the office, but remained passive during the active administration of it by Billington — and this is the utmost that can be claimed by the appellant — the inquiry still remains, do the conceded facts make his estate liable to account for any part of the trust-fund ? If not, there can be no pretence to compel his representatives to settle an, account, for the sole purpose of making his estate responsible.

The trust was created in 1818. At the end of nearly ten years, on the petition of Mrs. Yanarsdall’s trustee, the assignees were cited to account. This call was answered by Billington alone, who, as acting assignee, on the 15th of September, 1828, settled an account which purports to cover the whole trust-estate, including the realty conveyed to Samuel N. Gray; the only item against ■which, on the argument here, objection was pointed. To this account the- usual affidavit of its verity was appended. It would seem to have been satisfactory to the parties in interest, for no exception was taken to it by the now appellant, on whose call it was furnished, nor by any one else. So far as is shown by the record, it has never been formally impeached, for though, after its settlement, an action was instituted in the Supreme Court against both of the assignees, this was in December, 1835, disposed of by nonsuit, ordered by the judge who presided at the trial. In May, 1837, the appellant, by petition representing the death of Billington and that Richards had survived, prayed a citation against the latter commanding him to settle an account of the assigned estate. This petition did not notice the account filed by the acting assignee, nor did it suggest that other trust-property or effects had come to the hands of the survivor. Indeed, up to this moment, no such allegation has been ventured either by matter of record or inf ais, so far as we are informed. In answer to the second citation, Richards, on the 23d of June, 1837, averred under oath that he had never taken an active share in the management of the trust, but had constantly refused to do so; that he had never received any property under the assignment, and therefore could not exhibit an account; that Billington, who had exclusively managed the trust, settled an account thereof in 1828; and that he, Richards, in the year 1824, for the sake of conformity executed one or more deeds conveying part of the assigned estate, which were presented to him with the information that his signature was requisite as a legal form, in consequence of his name being used in the assignment. This answer remained on file unanswered for nearly four-years, when, in December, 1840, Mrs. Vanarsdall, by her trustee, put in a replication averring that Richards did take an active part in the execution of the trust, and that, as assignee, he executed conveyances of valuable estates and property, for the furchase-money of which he was liable to account. In December, 1841, the subject was referred to an auditor to examine and report whether Richards had rendered himself liable to account as assignee; with a direction to return the testimony. On the 3d of March, 1845, the auditor reported the facts, and his opinion, formed therefrom, that Richards was not, in his lifetime, nor are his executors, since his death, liable further to account under the citation. To this report Mrs, Vanarsdall’s trustee filed exceptions, which were overruled by the Court of Common Pleas, and the report of the auditor confirmed on the 16th of February, 1846. From this decree tho pending appeal is taken.

This is a brief history of the leading points of the controversy. By it these prominent facts appear beyond contradiction: first, that Billington was the active and sole acting assignee; second, that through the active agency of the now appellant, he was compelled to and did settle his account in the year 1828, including the whole of the trust-property, which account, with the knowledge, and directly under the eye of the complaining party, was filed of record in the proper court, and has so remained for a period of upwards of twenty years; third, that the avails of the estates mentioned in the replication of Mrs. Vanarsdall, are included in and accounted for by Billington’s account; and, fourth, up to this moment, there is no allegation that Richards received a dollar of the trust-fund, or that there is any portion of it unaccounted for. Putting the case in the most favourable point of view for the appellant, these facts prove that Richards, in his lifetime, occupied the position of a co-trustee, who had never actively intermeddled with the trust-property, all of which had been administered by his fellow, and by him accounted for, without objection. Why then call for another account? As already intimated, it must be solely with tho view of charging the estate of the surviving assignee with the several sums received by his colleague. But this, under the facts that have place here, cannot be done, not even in respect of tho consideration-money, for which the trustees gave a joint receipt, but which went exclusively into Billington’s hands. It is a trite rule of equity, that, of several trustees, ho who actually receives the fund is alone liable, unless there be circumstances of fraud or gross negligence. Some diversity of opinion seems to have prevailed as to the joint liability of executors, who unnecessarily join in a receipt for trust-money. At one time it seems to have been received as an inflexible rule, that where executors joined in a receipt they were jointly chargeable, on the ground that a joinder was unnecessary unless they intended to be responsible for each other. But this rule has never extended to trustees created by deed, since it was necessary all should join in the execution of the trust, and, consequently, were compellable to execute joint receipts, though one of them only received the fund. And even in the case of executors, modern good sense, looking beyond the technical reason of the rule, which was supposed to be applicable to the peculiarity of the trust devolved on them, seems to have broken down the distinction between them and other trustees, by denying that, in reason, an intent to be jointly chargeable is deducible from the mere fact of joining in a receipt: per Lord Eldon, 16 Ves. 479; McNair’s App. 4 R. 148; Brown’s App. 1 D. 311; Sterrett’s App. 2 Penna. 420-1; Vernon v. Henry, 6 W. 192. And now, as is said in Boyd v. Boyd, 1 W. 867, a train of authorities puts it beyond dispute that executors who give no bond, and general trustees, are liable only for the amount that comes to their hands, though it is otherwise with administrators who, by giving bonds, become sureties for each other. In the administration of this rule, the right of trustees, including executors, to settle separate accounts, showing their separate receipts and disbursements, is constantly recognised. It has never been thought, so far as I am aware, that a legatee or creditor could compel each trustee to account for the whole of the trust-estate; to charge himself with what had passed solely through the hands of his colleague; or to account at all, where he had received nothing of the trust-property, unless under very special circumstances, which have no existence here.

But there is another unanswerable objection to the present attempt. There is no such thing as the liability of one joint trustee for the misfeasance or nonfeasance of another, unless that other, from insolvency, is unable to answer for himself. Until then, there can be no loss; and it is only when a loss occurs the non-receiving trustee is ever held liable. He becomes obnoxious to complaint only when his culpable negligence has enabled his companion to squander and dissipate the trust-property. But this cannot be averred, where the companion continues to possess the representative of that property. In the case in hand, there is no whisper that Billington’s estate is bankrupt. The attempt to charge Richards’s estate would, therefore, seem to resolve itself into an effort, indirectly, to overhaul Billington’s account, which lapse of time and long acquiescence in its correctness protect from a direct assault.

To prevent misapprehension, it may be well enough to notice, that no impropriety in effecting the sale to S. N. Gray, in which Richards participated, is averred. Nor is inadequacy of price alleged. The only ground upon which an account is demanded from the personal representatives of Richards, on that score, is, that the considerations for the conveyances “ were large sums of money, for which the said Samuel Richards is accountable.” But it is shown that Richards received no part of these sums, and that Billington has accounted for the consideration of the sales.

It is, long since, time this controversy was ended. We feel satisfied this determination of it is placed upon a basis equally in accordance with the strictly legal and equitable rights of the litigants, and the abstract justice of the case.

Decree affirmed.