Harrison v. Mock

CHILTON, J. When this case was before this court at a previous term, (see 10 Ala. Rep. 185) the principles which should govern its final disposition, were very fully declared, and the decree of the chancellor confirming the report of the register was reversed, and the cause remanded that furth er proceedings might be had in conformity with the opinion then delivered. The effect of that reversal was to open the previous report of the register, and when the chancellor afterwards re-refered to him the matters of account, to report upon the same in conformity to the decision of this court, it was entirely proper that he should take into the account every matter properly embraced in the pleadings. It follows then, that the register was not concluded by any matter contained in the first report, and was authorised under the order of reference, which was general, and the propriety of which is not questioned by the errors assigned, to state the account anew, rectifying any mistake which had intervened in taking the first account, and charging the plaintiff in error with the proceeds of the ero p of 1843, if the proof showed that such proceeds were properly [622] a portion of the trust effects. Goodwin, et al. v. McGehee, et al. 15 Ala. Rep. 223-251-2; Kirkman v. Vanlier, 7 Ala. Rep. 217. As to the allowance of $1100, the price of the crop of 1843 sold, as is alleged, by the administrator of Meyer, we do not find in the record sufficient proof to sustain it. It appears that Meyer, after the execution of the trust deed, retained the slaves, and cultivated one of the plantations of Richard B. Harrison, but whether the crop of 1843 was raised on this, or other lands, does not appear. Be this as it may, the only proof of the value of the crop is made by Gardner, who states that Richard K. Harrison told him, that the proceeds of the crop of cotton made by the negroes for the year 1843, and sold by him as administrator, was eleven hundred dollars. This would be proper evidence as against Richard K. Harrison, but certainly cannot be received as sufficient to fix upon the estate of Richard B. Harrison, the trustee, a liability to-that extent; as to him, it must be regarded as the declaration of a mere stranger. There is no doubt of the correctness of the proposition, that if the trust property was permitted by the trustee to remain with the administrator of Meyer, he would be as much bound to account for its reasonable profits as though Meyer himself had retained it, and the proof is sufficient to show that Richard K. Harrison administered at the request of the trustee, who was the only security upon the bond, and that the slaves were retained by his permission. The estate of the trustee, under such circumstances, should be liable for their reasonable hire, but not for the value of the crop that was raised upon the trustee’s land, for this would be to charge him with the proceeds of his own estate, which would be manifestly unjust, although he may have conferred upon Meyer, or his administrator, the right to cultivate it gratuitously. There is no principle better settled than that a trustee can make no profit to himself from the trust, and if he invest the trust funds, the cestui que trust may elect to take the profits or hold him accountable for the fund with the interest; but if he wrongfully deliver the trust effects to a third party, and derive therefrom no profit, the measure of his liability is . not the benefit which may have accrued from accidental intervening causes to such third party, but the profits which [623] should have accrued by the exercise of proper diligence over the effects by the trustee. ■ We think the register very properly reported the sum of §1989 05 as due the trustee, and as a charge upon the trust effects. The first report, which deducted this sum from the amount in the hands of the trustee, was- clearly erroneous, as the effect of such deduction was to allow the trustee, whose demand was placed by the deed on the same footing with those of the other creditors, full satisfaction of his claim, whereas they must have.shared pro rata the residue of the fund which ¡is inadequate to the payment of all the claims. The trustee by the acceptance of the trust, agreed to execute it according to the provisions of the deed, which gave him no preference over the other creditors. But although he was not entitled to preference they have no -right to enforce the collection from him of the portion which is due to him, and which the court would order to be refunded as soon as collected. This would not only be useless, but oppressive, and no reason exists why it should be done. The effects, which remained in specie, have been sold, and the decree against the administrator is for a' sum in'numero, to be páid to the register of the court for distribution.- The entire amount of the debts which constitute a charge upon the fund .having been ascertained, as well as the amount to be apportioned between the creditors, it is quite as practicable to determine before, as after the collection, what sum is due to each, and thus relieve the estate from paying into court money which is to be refunded. — See Nelson & Hatch v. Dunn, et al. 15 Ala. Rep. The register very properly disallowed the claims set up by the amended and supplemental answer of Kirkland Harrison as administrator of B-. B. Harrison. The proof shows the payments, which are aver-ed in the answer to have been made since the filing of the bill, were in fact made long before the deed of trust was executed. These demands, if indeed they are different from those which are mentioned in the original answer of R. B. Harrison, are not put in issue by the pleadings. If, as the proof shows, the executions specified in the supplemental answer were paid in 1838 or 1839, the defendant while living or his representative after his death should have obtained permission to amend the answer, so as to insist [624] upon them. This has not been done. But they are set up as supplemental matter, occuring since the filing of the bill, and since the answer of said defendant was filed. The answer of Richard B. Harrison, which proposes to set up all the claims due from Meyer to him at the time of filing it, is conclusive upon him until it is amended, being, as was said by this court in the former opinion, “ an admission of the extent of the debt at that time.” 10 Ala. Rep. 195. In respect to the right of the trustee to retain for his own debt to the full extent of his demand, as also, with regard to the Hen of the executions which Richard B. Harrison had paid before the deed was executed, it is unnecessary that we should say any thing, as the former opinion is conclusive upon these points. The acceptance of the trust by him, as we have before said, is a waiver of his lien then existing, and he has no right to retain except for the proportion of the fund to which upon a just distribution of it, he would be entitled. If he has in good faith discharged liens upon the trust property since the execution of the deed, which liens existed in favor of others, as such payment would be for the benefit of the cestuis que trust, he would be entitled to be re-imbursed from the trust fund the full amount of such payments; but the proof fails entirely to bring him within this category. If, however, the proof was sufficient, he could not be allowed to avail himself of the executions thus purchased, to sell the trust effects. This would be to allow him to purchase for his own benefit, and to set up the interest in opposition to the trust, which a trustee may not do. — See McKinley v. Irwin, 13 Ala. Rep. 681. For the error above noticed, the decree must be reversed so far as it requires the administrator to pay into court the amount to which he is entitled out of the funds of the estate, and as to the crop of 1843, but as to all other matters, the same is affirmed. Let the cause be remanded, that an account may be taken of the profits of the estate in the year 1843, and that the amount due the administrator being deducted, the remaining sum may be paid into court, or executions issued therefor. Let the plaintiffs in error recover the costs of this court.