Clapp v. Emery

Mr. Justice Scholeield delivered the opinion of the Court: Appellants contend that no ground of equitable jurisdiction is established, and that the bill should, therefore, have been dismissed. The evidence, in our opinion, sufficiently shows a trust. It shows that David W. Emery was authorized to collect and invest appellee’s money for her; that he kept the money together, and invested it, from time to time, and spoke of it and treated it as being not his, but his mother’s money. He was, we think, but her trustee in investing it—not a borrower of it. It was said in School Trustees, etc. v. Kirwin, Exr. et al. 25 Ill. 73: “It is not necessary, if the trust be moneys, that the particular coin or kind of money, or the individual pieces, shall be identified, in order to pursue it, but its identity as a fund must be preserved, so that it can be distinguished from all other money. So long as it can be .followed as a separate and independent fund, distinguishable from any other fund, it can be pursued.” See, also, Kirby, Exr. v. Wilson, ante, 240. There seems no difficulty, here, from the evidence, in following and identifying this as a separate and independent fund, down to the time of the death of David W. Emery. The fact that the court ordered payment to be made of it as of a seventh instead of a sixth class claim, might have been complained of by appellee, but certainly affords no cause of complaint to appellants. That, assuming we are right in our conclusion as to the effect of the evidence here, a court of equity is, at least, competent to take an account of the transactions between the trustee and his cestui que trust, admits of no controversy. Hill on Trustees, (4th Am. ed.) 66, *42; Adams’ Eq. (6th Am. ed.) 442, *220; 1 Story’s Eq. Jur. § 465; Bispham’s Principles of Equity, (2d ed.) 525, sec. 479. A small book, mentioned in the pleadings and evidence as the “little book,” which was in the possession of appellee, was produced at the instance of appellants, and by them introduced in evidence. It purports to contain items of account — creditor and debtor—between appellee and David W. Emery, and shows a balance to the credit of appellee of only $11,292.75; and it is contended the court should have been governed by this balance in rendering the decree. We think the evidence satisfactorily shows that this book did not contain accounts of all the transactions between the parties, and that it did not truly set forth the balance due appellee. There are numerous circumstances that tend to establish this. It would seem enough, however, to say, that the evidence clearly shows, beyond question, that that book does not contain all the items with which David W. was chargeable. That book, too, shows him chargeable with $11,000, outstanding May 1, 1875, and that his total receipts were only $13,420; and yet, on June 12, 1875, he receipted to Baldwin, Stone and Emery, as attorney, (and, all the evidence considered, it is reasonably certain that he was attorney for no one but appellee,) for $18,655.71. The remaining objection to be considered, is that to the rejection by the Superior Court of the master’s report of a balance of $19,479.93, and finding a balance, in its stead, of $22,823.27, and decreeing that appellee is entitled to the payment of that amount out of the estate of David W. Emery, deceased. In this, we think, the Superior Court erred. From the master’s report, it appears that he found the amount of moneys received and collected by David to be $23,311.22, less the sum of William S. Emery’s funeral expenses, which he paid ($497.95), leaving a balance of $22,813.27. The master shows that all of appellee’s fortune, all the money she had, was in the hands of David W. Emery, and she received no money from any other source whatever, and she had no other money at the date of her husband’s death. The family, which consisted of appellee and two daughters, were living at Wilkesbarre, Pennsylvania. They lived well, but economically. They dressed well, and entertained visitors. The daughters were young, and being educated. Ho accounts were kept, either on the part of David W. Emery, of the moneys he received, or which he paid to appellee, or disbursed on her account, or by appellee of the moneys received from him. Appellee was examined by the master as a witness, and, tinder his directions, she also exhibited to him all the receipts for money paid out by her, or on her account, which she had in her possession; and the master, after getting the best information he could, reports as follows: “The following is my estimate of the annual living expenses of Mrs.-Clarissa Emery and family: (The figures are taken from her examination, unless followed by the word ‘estimated;’ where this word is added, I have used my judgment, assisted by the examination of Mrs. Emery and the testimony.) [[Image here]] “In my opinion, the above is a moderate statement of the living expenses of Mrs. Emery and family. I think that Mrs. Clarissa Emery and family, for the ordinary living expenses of a family, (without taking into consideration another class of expenditures, which may be termed extraordinary expenses, which I will mention hereafter,) lived up to the average income of her estate, i. e., that she spent the average of it. There would naturally be a tendency to confine the living expenses to the income. It is a feeling which prevails amongst all people who have capital, with a sufficient income to live upon. “His Honor, Judge Moore, in the interlocutory decree which referred this cause to the master to state an account, found, inter alia, as before stated, that said D. W. Emery should be charged with interest, at the rate of six per cent per annum, It is impossible to obtain mathematical accuracy where no accounts were kept. In the absence of these accounts, I have given the matter earnest consideration, and the above is my opinion. “I therefore find that the ordinary living expenses ofMrs. Clarissa Emery, all of which.were paid out of her money in her son’s (David W. Emery) hands, were sufficient to consume the income of her estate in the hands of her son, computed at the rate of six per cent per annum. In addition to the ordinary living expenses of Mrs. Emery and family, there were what I term extraordinary expenses. Though some of these expenses may not strictly come under this head, yet I have not considered them before. There were two sicknesses in the family, one of Mrs. Emery and one of her daughter. Mrs. Emery’s physician’s bill was $50; her daughter’s (esti-. mated), $12, making altogether $62. School books for the two girls, $30; pocket money for the girls, $100; carpet, $31.50; crockery, $25; traveling expenses for Mrs. Emery to Hew York, $250; ditto, of daughter to Hew Jersey, $100; ditto, to Chicago, and moving, $100; furniture of new house in Chicago, $500, less amount received for sale of furniture in Wilkesbarre, $250—$250; loaned George W. Emery, $150; loan of sister, $50; another loan to George W. Emery, $200; sewing machine, $85; bed room set given to daughter, $40; linen given to daughter, $20; fitting daughter to be married, $150; water tax, personal property tax, six and two-thirds years (estimated), $100; hedge about W. S. Emery’s grave, $15; plumbers’ bill, $50; repairs (estimated), $100;- court costs, settling estate, (estimated) $25; total, $1733.51. “The examination of Mrs. Emery developed the fact that her memory was not good. She never kept accounts, and knew nothing of figures. During her son’s lifetime she never wanted for money, as he always kept her abundantly supplied. Although her tastes were simple, and she was economically disposed, it must be evident that she expended, and her son expended for her, a much larger sum than she was aware of. We all know how maiiy various and unlooked for expenses beset us in daily life, and experience teaches us that the only method of keeping expenses within proper limit is to keep a rigid account. “ I have enumerated a class of expenses above, which D. W. Emery, as I believe, actually paid for his mother. From the nature of the case, these sums, just above mentioned, can only cover a moiety of the money paid out for her. I should never feel satisfied to stop here, and say that the estate of D. W. Emery was to receive credit for no more. There are many occasions of paying out money, which an acquaintance with life in a city of 12,000 inhabitants, like Wilkesbarre, or in Chicago, will suggest. The amount which Mrs. Emery assigns as the expenses of outfitting at the time of her daughter’s marriage—$150—which includes one silk dress and one other dress, etc., etc.,—I consider very low. There are druggists’ bills, street car fare, little charities,—in short, many things which require money. It should not be forgotten that all money is not wisely spent. A certain per cent of it is foolishly spent by nearly every person. “ I can not feel certain that no considerable sums were not paid out for some purpose or purposes, which sums have escaped the memory of Mrs. Emery. It seems $500 per annum is not more than a fair estimate of the amount of these additional or extraordinary expenses of Mrs. Clarissa Emery and her family, and so I find, after consideration of the whole case, and from the examination of Mrs. Clarissa Emery, and from the evidence, that in addition to the livinoexpenses of Mrs. Emery and family, which I have found to be equal to the income of her property in the hands of D. W. Emery, the sum of $500 per annum, for six and two-thirds years, should be credited to his estate on the above account, making the sum of $3,333.34; debit, $22,813.27; credit, $3333.34. The amount due Clarissa Emery from the estate of D. W. Emery, $19,479.93. “I find that the complainant, Clarissa Emery, is entitled to recover this amount of nineteen thousand four hundred and seventy-nine dollars and ninety-three cents ($19,479.93), from the estate of D. W. Emery.” In our opinion, the evidence preserved in the record fails to impeach the general accuracy of this report. The relation of the parties,—that of mother and son,—may explain why no more care was observed on either side in the keeping of accounts. It is true, the burden is on appellant, to establish .the credits, but this is not to be done, as in a criminal case, beyond a reasonable doubt. If, in the light of experience in like affairs, there is a preponderance of evidence in favor of the credit, it should be allowed. If David W. were alive, he might much lighten the burden upon his estate, by showing additional credits. His death ought not to be availed of to do injustice. There is proof in the record, showing that appellee, in stating what the estate owed her, often put it several hundred dollars less than the amount found by the master’s report. We think the decree should have been only for the amount found due by the master’s report. The decree of the Appellate Court will be reversed, and the cause remanded, with directions that the decree of the Superior Court be reversed, and a decree entered in that court for the amount of the master’s report. Decree reversed.