Grinnan v. Long

JOHNSON, PRESIDENT: There is really but,one question presented in this appeal, if it will lio, and that is: Did the court under the circumstances err in requiring the trust-fund to be paid into court? It is insisted by counsel for appellees, that an appeal will not lie to the order of the court requiring the money to be paid into court; that the decree did not “ require money to be paid or the possession of property to be changed ” within the meaning of the statute. This decree required A. G. Grinnan to pay twenty-one thousand and thirteen dollars and twenty-four cents into court. If he did not do it, an execution might issue against him. If such an order is not appealable, what redress would a trustee have, where he had been ordered, it may be, to pay into court thousands of dollars not in his hands, and for which he is not liable? It might be, that a trustee under the terms of his trust had loaned,the trust-fund on long time, and if notwithstanding this fact a court of equity should order him to pay the money into court, it would be strange indeed, if he had no redress. We think the order was appeal-able. Did the court err under the circumstances iu directing the payment of the fund into court? This is not the case of the removal of a trustee, and therefore the authorities cited by counsel for appellant have no application. It appears to have been formerly thought necessary for the plaintiff to show in support of an application to have money paid into court by a trustee, that the trustee had abused his trust, or that the fund was in danger from his insolvent circumstances; but now the court will generally order so much of the trust-fund, as the trustee admits to be in his hands, to be paid into court, [697] wbetlier lie lias abused his trust or not, and without requiring proof of any danger to the property pending the litigation. Daniel Ch. Pl. & Pr. 1771-2; McKim v. Thompson, 1 Bland Ch. 156; Clarkson v. Depeyster, 1 Hopk. 274; Strange v. Harris, 3 Bro. C. R. 365; Blake v. Blake, 2 Sch. & Lef. 26; Hall v. Hall, 2 McCord Ch. 269; Hosack v. Rogers, 6 Paige 415. In McKim v. Thompson, 1 Bland, it was held, that “to obtain an order upon a defendant to bring money into court. before the final hearing, it must appear, that he, who asks for such an order, has an interest in the money proposed to be called in; and that he, who has it in his hands, has no equitable right to it, and the facts, from which this appears, must be found in the case as it then stands, either admitted or so established as to be open to no further controversy at any subsequent stage of the proceedings.” In Clarkson v. Depeyster, 1 Hopk., it was held, that ‘.‘where a sum is reported due from a defendant, and he acquiesces in the report, but the cause is delayed by other questions, the court will sometimes order the reported sum to be paid into court.” In Strange v. Harris, 3 Bro. C. R., it was said by the Lord Chancellor: “The court will now immediately upon coming in of defendant’s answer order so much as he admits to have in his hands of the testator’s property to be paid into the bank. It was formerly thought necessary for the plaintiff to show that the executor had abused his trust or that the fund was in danger from the insolventcircumstances of the executor.” In Blake v. Blake, 2 Sch. & Lef. 26, the Lord Chancellor said: “ Certainly the old law was as stated at the bar, but modern decisions are different; and it cannot be doubted, that the alteration was very much for the benefit of all parties. Wherever there are no debts, or the’debts are all paid, and no purpose for which it should be left outstanding, the present practice is to have the money lodged in court. When there, it is always ready for those entitled to it when the time comes for paying it to them.” The case before us differs materially from any we have seen. Here the appellant filed his cross-bill, alleging that he had in his possession the trust-fund, which he prayed the court to distribute when his ac [698] count, in accordance with the prayer ot his bill is settled by a commissioner of the court, and it is ascertained by the report what tlie amount of the fund is, in which amount he ac-quieces by failing to except to the report on the ground that the amount is incorrect, and a rule is awarded against him to show cause at the next term of the court, why he should not pay the fund into court; he answers the rule and in his answer fails entirely to show any just reason why the fund should not be so paid in, so that the court could do the very thing, which he prayed in his bill might be done, that is, distribute the fund. In such a case of course the order requiring the fund to be paid into court was proper. It was proper to award the rule even in a case like this, to give the trustee an opportunity to show, if he could, any good reason why he should not then be required to pay the fund into court. It is assigned as error, that the amount required to be paid in was ninety dollars and eighty-two cents more than was found in the trustee’s hands by the commissioner. This is' true; the amount was taken from a former report. This ivas a clerical error, and will be here corrected, and the decree thus corrected is affirmed. Judges Greek and Snyder Concurred. Aeeirmed.