Hughes v. Tabb

Lacy, J., delivered the opinion of the court. In the year 1860, John Tabb died in the county of Gloucester, possessed of a large estate, having first made his will, by which, after providing for his widow, who survived him only a few years, and making certain inconsiderable — 316 — specific devises and bequests, gives to his son, J. Prosser-Tabb, and his heirs, the rest of his estate, subject to the following conditions, that is to say: “ Three thousand dollars of the annual profits are to be paid annually, in half yearly payments, to my son, Philip Tabb, during his life,, commencing six months after the death of his mother, and at his death the same shall be paid to or amongst his child or children during their lives or the life of the survivor of them.” The sixth clause of his will is as follows: “ I leave my son, John Prosser Tabb, my executor, knowing that the labor of managing the estate will be greater than my wife could undertake, and I hereby authorize and empower him to sell and convey any of my real property which may be to the interest of my estate. I request, as I owe no debts, that he be permitted to qualify without security, and that no inventory or appraisement of my household and kitchen furniture be taken except by the parties interested.” The estate of the testator, who died in the month of April, 1860, was large. He was the owner of the “White-Marsh” tract of land of seventeen hundred acres, and all the land and buildings at Gloucester Courthouse, except the public buildings; a farm called “Somerville,” adjoining the Courthouse; a valuable tract at Gloucester Point, and valuable real and leasehold property in the city of Norfolk. His slaves were appraised at $90,000, and his personal property was appraised in the aggregate at $153,184.52.. The household and kitchen furniture was-not appraised, by the direction of the will. After the death of his wife, $5,000 was to go to J. Prosser Tabb’s children for legacies. The legacy to Philip of certain bonds, worth $25,000, was accompanied by a gift of the same in life. His property in Norfolk was given to Philip, but if he should die without issue, it was to revert to his estate. — 317 — The late war began soon after the death of the testator, by which the slave property was lost to the estate, and much other valuable property destroyed. In 1870, J. Prosser Tabb sold the White Marsh tract of land to one George Hughes, of New York city, at the sum of $60,000—$20,000 to be paid in cash, the balance of $40,000 to be secured by a lien on the White Marsh tract, bearing seven and one-half per cent, interest; the interest to be paid semi-annually, and the principal to be paid in three years. This transaction had the cordial consent and approval ■of Philip Tabb, it being arranged among the parties that the interest was to go to Philip Tabb, by way of discharging his annuity of three thousand dollars a year. In November, 1870, the said J. Prosser Tabb and the infant child of Philip Tabb, by Tazewell Taylor, her next friend, filed their bill in the county court of Gloucester, against Philip Tabb and George Hughes, setting forth this sale and the arrangement above mentioned, as to the credit payment of $40,000; and the sanction of the court was had and the sale •approved; a reference being first had to a commissioner in chancery, whose report was brought in and considered in the cause. J. Prosser Tabb was authorized to collect the $20,000, so far as uncollected, and a commissioner of the court appointed to collect the $40,000, when it should fall due, directing the interest to be semi-annually paid to Philip Tabb, as an equivalent for his annuity given him by his father’s will, and further provided for a deed to be given to the purchaser, George Hughes, who was required to convey the White Marsh tract to a trustee to secure the payment of the $40,000, at the end of the three years, and for a time the arrangement seemed to be complete. Then J. Prosser Tabb sold the remaining lands of his father’s estate to George Hughes, to-wit: Courthouse, the Glebe, and Gloucester Point lands. — 318 — With the financial crisis of 1873, came the failure of the-firm of George Hughes & Co., of New York city, of which, said Hughes was the senior member. On the 24th of September, ¡875, George Hughes conveyed his equity of redemption in White Marsh, the Glebe, and Gloucester Point property, to P. H. Page and William Dickson, trustees for Annie F. Hughes, to be held by them for her benefit; and on the 2d of December, of the same year, he executed a. mortgage on the Courthouse property to secure a debt of £20,000 sterling, to one George Bliss, of New York. This mortgage was foreclosed by legal proceedings in the circuit court of Gloucester, when a special commissioner, appointed for the purpose, sold the same April 2d, 1877, to William Dickson, trustee for Annie F. Hughes, for $14,000,' which was paid. Subsequently, a deed was executed to said trustee, and P. H. Page, the appellee, was substituted as trustee in the place of William Dickson. In May, 1877, a decree was entered directing the sale of the White Marsh tract in the circuit court, the first named suit having been there removed, by the statute of 1873, from the county court; and the said bond of $40,000 being then due, and the interest not paid thereon for that year, and George Hughes having failed to deposit the sum of $40,000 in bank, as directed by the former decree in the cause, entered in Hovember, 1876, on the 1st day of October, 1877, a special commissioner of the court sold the said White Marsh tract under said decree of May, 1877, and the wife of Philip Tabb became the purchaser, at the sum of $35,000. The expenses of the sale were $843, and the net proceeds $34,157. On the -21st of Hovember following, without the execution of any bond and without security, the sale was confirmed, and the sheriff ordered to put Katherine V. Tabb, the wife of Philip Tabb, in possession as purchaser of the said White Marsh tract, which was done. The appellants in 1879 presented their petition to the circuit court of Gloucester, praying to319 be admitted as parties defendants to the suit of Tabb’s executor v. Hughes; that Katherine V. Tabb, the purchaser of the White Marsh tract, might be required to comply with the terms of sale; that the will of John Tabb might be construed ; and. should it be held that any charge existed on the real estate in favor of the annuitants under the will, that the reversionary interest of John Prosser Tabb in the $40,000 might be subjected. The parties were summoned to answer this petition. In the year 1880 appellants came in with another petition, setting forth that the terms of sale were still uncomplied with, and setting forth moreover that the said Katherine Y. Tabb, having failed to comply with and complete her purchase, was now denuding the White Marsh tract of timber, and asking an injunction, which was granted. On the 9th of July following the May term, 1880, when the above mentioned injunction was granted, a special term was held aud the court then decided that the said Annie F. Hughes, the purchaser of the other lands of John Tabb, had no concern in the matter of compliance with the terms of sale of White Marsh by Katherine y. Tabb, nor with the cutting of timber off of the same, nor with subjecting the equity of redemption in the $40,000 belonging to J. Prosser Tabb, and dissolved the injunction awarded about a month before; by which, without compliance with the terms of sale, the timber on White Marsh might be cut by the purchaser. This seems to have been the effect of the decree, as the court decided that Annie F. Hughes had no standing in court at that time. On the 22d of November following, Philip Tabb filed his answer to this petion of the appellees, upon which nothing was done at this term. In the next year, the appellees came again into court with a petition setting out the transaction hereinbefore recited; the pretension of Philip Tabb, that all the lands — 320 — held by the appellees, which they bought at the sales hereinbefore mentioned, were bound for the annuity to him; “that J. Prosser Tabb had used a large part of the $20,000 paid in cash by George Hughes for White Marsh tract, to buy, and now, held, a valuable tract of land in the county, called “Ditchley”; that if there was a trust estate created "by the will of John Tabb, Ditchley was liable first to pay the annuity to Philip Tabb, and that the reversion of J. Prosser in the $40,000 was in like manner liable; that Katherine Y. Tabb was still in possession of White Marsh, and had not complied with the terms of sale, but was cutting timber from the tract of land, which would seriously impair its value; that Philip Tabb might die at any time, and at a resale to satisfy the annuity to his ohildren, a still greater deficiency might result; and praying a construction of the will of John Tabb, an injunction to restrain John Prosser Tabb from collecting rents from Ditchley, aliening or encumbering it; that the sale of the reversionary interest of John Prosser Tabb in the $40,000 might be set aside, which had been effected at a small sum to Katherine Y. Tabb, and that Katherine Y. Tabb and all others might be restrained from cutting timber from White Marsh. This injunction was granted, and Katherine and Philip Tabb answered, admitting the statement above as substantially true, and claiming that there is a charge upon the whole estate of John Tabb for the annuity to Philip Tabb; that the court had never exonerated any part of it except White Marsh, and that for the lands sold the appellants were liable, after deducting the net sales of White Marsh to Katherine Y. Tabb; that Katherine Y. Tabb had purchased the reversionary interest of J. Prosser Tabb in the $40,000, and there was no necessity for her to comply. J. Prosser Tabb answered also, and admitted that Ditchley was bought with the proceeds of White Marsh. On the 23d of May, 1881, the two causes were heard to321 getter, upon the motion of Philip, Katherine, and J. Prosser Tabb, to dissolve the injunction awarded on the 3d of March, 1881, upon the bond of Katherine V. and Philip Tabb of $30,410, conditioned for the payment of the interest thereon, annually, to the said Philip Tabb during his lifetime in semi-annual payments, and after his death to his surviving child or children; and upon a statement showing the balance due from George Hughes on his bond of $40,000, after crediting the amount of the second purchase, less costs of sale, and the overdue annuity, as is stated above. In this decree, Katherine and Philip were directed to execute their joint bond to a commissioner in the penalty of $30,410, conditioned for the payment of the interest semi-annually, which is therein ascertained to be $912.30, half-yearly; and directed the said Katherine and Philip to convey the said farm in trust to a trustee named therein, to secure the payment of the said bond; the said commissioner to simultaneously convey by deed to the said Katherine; that the interest thereon should be in satisfaction pro tanto of the annuity of Philip, subject to which John Tabb devised the rest and residue of his estate to J. Prosser Tabb; and all such rest and residue of said estate so devised to said John Prosser Tabb, shall be relieved to the extent of such annual interest from the payment of the annual sum of three thousand dollars, subject to which it was devised. The decree dissolved the injunction of March 3d, 1881, and held that $1,175.40 still remained to be annually paid out of the rent and residue of John Tabb’s estate, which should be paid out of the annual profits of the residue of the said estate, held by the said John Prosser Tabb, and his alienees, if any, subject to the condition that they pay the same out of the annual proMs thereof, to be paid out of such estate in the inverse order of its alienation; and a reference to a master was directed to enquire and make re — 322 — port as to wlien and what real estate of John Tabb had been aliened and to whom, &c. The decree ascertained the net balance due from George Hughes, on his bond of $40,000, to be $9,590, and decreed against the said George Hughes the said sum, with interest from October 1st, 1877, at 7J per centum interest. From this decree an appeal to this court was applied for, and allowed. As is insisted on both sides, there is but one question involved in this case in this court about which there is any serious contention, and upon which it is necessary to pass. That assignment is this : "It was error to decree that the remainder of the annuity of $3,000 (after deducting therefrom the amount óf the annual interest of $1,824.40) is to be paid out of-the annual profits of the residue of the estate of said John Tabb, and that such residue of said estate is held by said J. Prosser Tabb and his alienees, if any, subject to the condition that they pay the same out of the annual profits thereof.” There are other and numerous assignments- of error, but this is the question upon which it may be said all the others depend. Did the will create a charge upon the real estate of John Tabb for the payment of the annuity to testator’s son, Philip; and if so, was it so charged for such a purpose as to require the purchaser thereof to see to the faithful application of the purchase money to the objects of the trusts In considering this question it will not be necessary to consider it in the aspect of collusion between the trustee and the vendee, as the case throughout, as we have reviewed it, shows on the part of J. Prosser Tabb the utmost good faith and fair dealing. Although authorized by the will to sell whenever he thought it best for the interests of the estate, he convenes his first purchaser and the brother and his child, who are entitled to the annuity, in a — 323 — court of equity, asks the assistance of the court in the premises, and obtains the leave of the court, and the consent of his brother, the annuitant, to his receiving $20,000 of the purchase money for his own uses, among which chiefly, no doubt, was to pay the over-due annuity. The remaining purchase money, $40,000, was invested by bond to run three years, interest payable semi-annually, at a rate which made the annuity; secured this bond by a trust deed upon this $60,000 tract of land, which was held by the court to be a safe investment and fully to provide for the annuity. The $40,000 was made payable to the court in effect, and by the consent and hearty co-operation of everybody in interest the problem of the will seemed solved. J. Prosser Tabb then seemed at liberty to exercise the large powers granted him by his father’s will, without endangering the interests of his brother and his children, as they seemed now secured. So, having suffered such material loss by the disasters of the late war, and being possessed of so large an estate in amount, and almost without income, he sold the other property in question for $46,420 nominally, which was an exchange for New York city property, with a rental of $15,000 a year. This was doubtless the circumstance which led to the exchange. This property in New York was taken subject to a lien already subsisting thereon. And before long, this ill-fated and unfortunate executor was destined to encounter a financial crisis which well-nigh completed the ruin as to the estate of John Tabb, which the effects of the war had so effectually commenced. The crisis of 1873 brought a fall of values, by which the New York city property, with its subsisting creditors’ lien, was lost, and next compassed the ruin of the large and wealthy house of George Hughes & Co., importers of linen goods, &c. George Hughes failed, could not pay his $40,000 bond for the purchase of White Marsh, and the — 324 — White Marsh tract was sold by order of court and bought by Katherine Y. Tabb, the wife of the annuitant, and, as we have seen, fell short of the $40,000. When called upon to know what was done with the $20,000, J. Prosser Tabb frankly admits that he had invested $10,000 of it in the valuable Ditchley tract, which he still holds, and that he had sold his reversionary interest in the $40,000 to his brother for $2,500. Not only was there no bad faith on the part of J. Prosser Tabb, and not only did Hughes have no cause to suspect bad faith in his vendor, but he had positive knowledge when he bought the Courthouse and other property that every act of J. Prosser Tabb was not only open and fair and Tjona fide, but that it had the assent of the annuitant, and, what is far more to the purpose, that it had the approval of a court of competent jurisdiction. This purchaser then stands in the attitude of purchasing for value, at a Toonafide sale by J. Prosser Tabb, with notice of all the trusts under the will of John Tabb, and with notice, at the same time, of the just and ample provision made for the protection of the trust and the maintenance of its purposes. Everything was in superlatively good faith. But the failure of George Hughes caused default in the payment of his bonds. The court has subjected the security provided, as we have seen, for its payment, and rendered a decree against George Hughes for the deficiency; and from this part of the decree no appeal is granted, and George Hughes, and whatever property he may have, is subject to its payment. But all the property of George Hughes having been sold, the contention here is, that the will of John Tabb made his son, John Prosser, a trustee, and devised his lands in trust to be held, subject to a lien for $3,000 a year, for the benefit of his son, Philip, and his children; and that this trust is of such a character that the purchaser of this real estate must see to the application of the purchase money to the purposes of the trust. — 325 — That is, that when John Prosser sold any of this land, the purchaser was bound, at his peril, to see that he applied the proceeds as the will directed, so that the purposes of the will shall be effectuated and not defeated. We have seen the will of John Tabb above. We will consider briefly the law of the subject; and it may be remarked that the learned counsel on each side have not disputed concerning the principles of 1'aw involved, citing for the same purposes the same authors, but differing only in their application of the legal principles admitted to the circumstances of this case. The rule is, that wherever the trust is of a defined and limited nature, the purchaser must himself see that the purchase money is applied to the proper discharge of the trust; but wherever the trust is general, and of an unlimited nature, he need not see to it. 2 Story’s Eq. Jur. §1131; 1 Lorn. Dig. 302-4; Potter v. Gardner, 12 Wheaton, 498. There is much reason in the doctrine that where the trust is defined in its object, and the purchase money is to be reinvested upon trusts which require time and discretion, or the acts of sale and reinvestment are manifestly contemplated to be at a distance from each other, the purchaser shall not be bound to look to the application of the purchase money, for the trustee is clothed with a discretion in the management of the trust fund, and if any persons are to suffer by his misconduct, it • should rather be those who reposed confidence than those who have bought under an apparently authorized act. Opinion of Justice Story in Wormley v. Wormley, 8 Wheaton, 442; Sugden on Vendors, ch. 11, § 1. So, when a sale is made by trustees under a power to sell and reinvest upon the same trusts, it has been held in America that the purchaser is not bound to see to the application of the purchase money. 2 Story’s Equity, § 1134, and authorities there cited. If the form of the bequest implies a confidence reposed — 326 — in the trustee in regard to the application of the purchase money, in all such cases it is unreasonable to require the purchaser to look to the application of the purchase money; and this is a principle which will ultimately mark an intelligible distinction among the cases in regard to the question. Id. When the time has arrived for the sale of the real estate, and the persons entitled to the money are infants or unborn, then the purchaser is not bound to see to the application of the purchase money, because he might thus be implicated by a trust of long duration. 13 Pick. 392; 5 Ired. Eq. 357; 10 Penn. St. 267. But if an estate is charged with a sum of money, payable to an infant at his majority, then the purchaser is bound to see the money duly paid; there the person is named, is in esse, and the day is fixed and designated, the trust is defined and limited. While if a sum of money is to be paid to persons yet unborn, and from year to year, to require the purchaser to see to it, at his personal peril, that the said sum of money is paid to the proper person or persons in esse and that may be hereafter born, and be entitled during the lifetime of each and all, until all are dead, would be to defeat the sale in such a case altogether, and defeat the purposes of the will. What purchaser would buy land if he had to guard the safety of the investment of the proceeds, for it might be a hundred years, when he, and possibly his children, should be dead ? ■ And if he did so buy, and such were his duties, it would be practically to substitute him to the duties, cares and responsibility of the trustee, and that without compensation. These are some of the most important and nice distinctions which have been adopted by courts of equity upon this interesting topic; and, as a distinguished author has observed, they lead strongly to the conclusion to which eminent jurists and also eminent judges have arrived, that it would have been far better to — 327 — have held in all cases that the party having the right to sell had also the right to receive the purchase money, without any further responsibility on the part of the purchaser as to its application. 2 Story’s Eq. § 1135. See Potter v. Gardner, 12 Wheaton, 498. The appellees cite and rely on the case of Downman v. Bust, 6 Rand. 587. In that case the testatrix bequeathed two legacies of $400 and $200, respectively, to two persons. The residue of her estate to Benjamin Rust, and appointed him her executor. Her personal estate did not amount to one hundred dollars, so it was held that the legacies were a charge upon the real estate. Rust conveyed to a trustee to secure the payment of his own debt; at the sale under the trust deed the creditor of Rust purchased, and the legatees gave him and the trustee notice of their claim to have their legacies satisfied out of the land. Their claim was sustained. If the transactions of Rust had been sustained, he would have alienated the whole estate to pay his own debts, and repudiated all the claims under the will, while the testatrix had not bequeathed the whole estate to him, but provided for the payment of two sums of money, to be paid at once, and to designated 'persons. His own creditor was dealing with him with the full knowledge that he was misapplying the trust estate, and had actually co-operated in the breach of trust. We may make a brief application of these principles to the case in hand. John Tabb charged the estate which he gave his son, J. Prosser, with the payment of an annuity to his son, Philip, to continue during Philip’s life, and during the life of the last child of Philip which should hereafter be in life. The estate was obviously charged in the hands of Prosser. The testator expressly declares that he shall take subject to the condition of paying this annuity out of the annual profits. With $153,184.52 of appraised personalty, $6,000 — 328 — worth of unappraised personalty, and perhaps as much in realty, it may be that the testator considered this condition a very trivial one. But however that was, he added a proviso which we have seen: “I hereby authorize and empower him to sett and convey any of my real property which may be to the interest of my estate.” In this case the time to sell came by the imperative necessity of paying this annuity. The real estate could not be utilized under the changed circumstances of the country so.as to pay the annuity, and yet Prosser could not hold it without raising the annuity. He had qualified without giving security, which, under the circumstances of the possible long duration of the trust, he might find it difficult to give. He was open to attack. He must sell for the purposes provided for in the will. He found a purchaser and went into court, as we have seen, to have the matter of securing and settling the annuity fixed. We have seen the arrangement perfected by the court, and the fund secured in a manner which seemed ample in all respects. A trust deed was taken by the court upon valuable real estate, as to two-thirds only of' the value of the same which it had just reached in the market; the fund was taken charge of by the court, and afterwards he sold the lands in question here. 1st. If the purchaser oE the said lands was obliged to see to the application of the purchase money to the ends of the trust, the annuity appeared to be provided for, and in the hands of a court of chancery. Was there anything else he could have done, unless he were required to stand by, through all the years, and see that, in no event, the investments made by the court should ever fail, in any contingency which might arise ? If so, as we have said, no reasonable man would part with his money to another and be responsible for all the investments, and yet have no power to control the investments. In this case the court — 329 — had taken charge of the fund, which was White Marsh, upon which, by authority of the court, the purchaser had paid $20,000 in money. 2d. Does this will create such a trust ? The annuity was to be paid, first to a person living, at his death to a surviving child, or children, if any. There was one child then, another has been born since. How many there will be, how long Philip Tabb may live, how long his child, or children, may Survive him, and where they live, or where they may die, are questions no one can answer. Under the authorities we have cited, could any person be expected to undertake such a duty, merely to pay value for property so encumbered ? It would be to require the purchaser, in effect, to become the executor of John Tabb, without any of the residue of his estate or other compensation. It would doubtless have been far better for J. Prosser Tabb if he had declined this long trust. J. Prosser Tabb was expressly authorized to sell at his discretion. The responsibility of Hughes ceased upon a compliance with his contract. He has never paid the whole of the purchase money for the White Marsh tract, and he is liable therefor, and the circuit court did not err in decreeing against him for such residue. But the White Marsh tract has been sold, and all the other lands bought by George Hughes, to other persons, to pay his debts, and the circuit court has decided that these lands are liable for the unpaid portions of the annuity. In this the court erred. And so much of the decrees of 23d and 24th of May, 1881, as so declares must be set aside and annulled. It is not necessary to pass upon any question concerning Ditchley, or any other question in the cause concerning the wood and timber on White Marsh, nor as to the properly securing of the fund for which White Marsh was sold, as — 330 — these are questions, in the view we have taken, with which the appellants have no further concern. Hinton, J., dissented. Decrees reversed in part.