Willis v. Foster

Jackson, Justice. The wife and children of John T. Willis filed their bill in equity against J. H. and L. B. Willis, executors of the will of R. J. Willis, and L. B. Willis also in his character as trustee of complainants under said will. The complainants were left one-sixth of the estate of testator, and L. B. Willis was made their testamentary trustee to hold and manage it for them. S. B. Heard had been also one of the executors, but died, and the bill is prosecuted against the two survivors. The executors were directed ±0 sell the estate, real and personal, which they did, buying the realty themselves, and portions of the personalty, through one Strain, as nominal purchaser of the realty, for $3,000.00, who reconveyed to them on' the same day for the same sum. They worked the plantation thus bought in partnership for several years, and receipted each other for their several shares of the estate—L. B. Willis giving his receipt as testamentary trustee for these complainants, and another receipt for his own family as their trustee. Heard sold his interest in the land, which was one-third, to Inman, Swann & Co., and at a subsequent stage of the case, the latter were also made parties to the bill as co-defendants. The bill is framed upon the idea that the sale to the trustees or executors by themselves was fraudulent, and complainants being minors, and never having received one dollar, either from the executors or from the testamentary trustee, had the right to go upon the land for their share of their grandfather’s estate, anj their mother for hers ; and inasmuch as Inman, Swann & Co. bought the interest of Heard with knowledge of the sale of executors to themselves, it proceeded against them as also liable to complainants. The whole cause was submitted to an auditor, who [87] reported thereon ; four exceptions were made to the report by complainants, all of which were sustained, and the jury found a verdict of six thousand and three hundred dollars for complainants, with lien on the land for payment thereof. A motion was made to set aside the verdict because it was contrary to certain charges of the court, to the law of the case, and to the evidence. The court below overruled the motion for a new trial, and the defendants excepted. 1. There was evidence sufficient, in our judgment, to-sustain the finding on the exceptions to the report of the auditor. The main question was fraud or no fraud ; and by the law everywhere, ratified and reaffirmed by our Code, fraud is subtle, and circumstances, though slight, will be considered sufficient to uphold the finding of the jury thereon, it being a subject peculiarly suited to investigation by them. Though the executors bought the land from Strain at what he bid it off, three thousand dollars, they accounted therefor to each other at nine thousand, thus showing that they themselves did not consider the price fair. These complainants, however, did not participate in the advantage of this additional price put on the land, for they got nothing from the estate, and will probably get nothing unless, it be got from this land. They lived and still live in Arkansas, and a very large estate in which their ancestor left them an interest equal to that of the other legatees, has been swallowed up by the others in Georgia. The presiding judge having decided that the verdict is not contrary to his charge, and the entire charge not being-set out in the record, we decline to interfere with the verdict on that account. So in regard to the evidence. There is enough to show that complainants were not dealt fairly with, and that all the executors should have looked to their interest so far as not to part with their share to a trustee, doubtful as to solvency, and to go into partnership with him in the land bought under very suspicious [88] -circumstances, and divided among themselves with nominal receipts for money to each other. 2. So far as the executors and trustees are concerned, -we have no difficulty in affirming the judgment. But Inmann, Swann & Co., it strikes us, though chargeable with constructive notice, to say the least, of the pur■chase of the executors of this land, and therefore it may be, liable for the interest of the complainants in the land, or the proceeds thereof, are certainly not liable for their interest in the personalty of the estate, with which they had nothing to do. As the verdict, therefore, makes no distinction between them and the other defendants, we cannot see that as to Inman, Swann & Co., it is not contrary to the evidence .and the law, in that it is too large. Inasmuch as complainants have received no part of the estate, as found by the jury, and found properly, we think they have nothing to tender back either to Inman, Swann & Co., or to the executors. If the executors colluded with their trustee to defraud them, and he did defraud them, which the jury found, the trustee’s receipt of the money is not binding upon them, even if he got it, which does not seem to be the case. This bill is against that trustee and the other executors, his confederates in fraud, and Inman, Swann & Co., who •bought, knowing of the voidable purchase of the land. We incline, therefore, to think that the latter, being affected with notice when they bought from Heard, are responsible to complainants to the extent of complainants’ interest in the land, which is one-sixth thereof, •or its proceeds; and inasmuch as we cannot direct the •verdict reduced, not knowing what is for land and what for personalty, or what part principal and what interest, we conclude to award a new trial to Inman, Swann & Co., .and to affirm the judgment as to the others.