Fearn v. Mayers

Chalmers, J., delivered the opinion of the court. In 1842, William P. Bibb, David P. Bibb, Robert T. Bibb, and Archibald E. Mills conveyed in trust to Thomas Bibb and A. M. Hopkins a large amount of real and personal property, situated in the States of Alabama, Mississippi, and Louisiana, for the purpose of liquidating certain liabilities therein specified. When these debts had been extinguished, the surplus property remaining was to be reconveyed to the grantors, or sold for division of the proceeds among them, as might then be deemed advisable. Under a special authorization contained in the conveyance, the trustees appointed George Fearn their agent to look after and manage so much of the property as was situated in Mississippi, at a stipulated salary. There was a full settlement between Fearn and the trustees in 1859, by which a small balance was found due him; and after that period very little was done in furtherance of the trust, the debts intended to be secured by it having been mostly liquidated. Fearn, however, remained in charge of the Mississippi property, giving it needful attention, until 1868, when he was adjudged a bankrupt. At the sale of his effects by his assignee, the complainant Mary C. Fearn became the purchaser of his claim against the trustees, for salary and moneys expended in his agency. The original trustees having died, and the appellee Mayers having been appointed in their stead, by the Chancery Court of Alabama, in which State the parties in interest principally resided, Mary C. Fearn filed this bill against said new trustee, and against the children and representatives of the original grantors in the trust deed, for the purpose of subjecting the corpus of the trust property, situate in this State, to the satisfaction of the amount due to her as assignee of George Fearn. We think that the amount due on the claim was equitably and justly settled by the report of Oliver Clifton, commissioner. But in this amount is embraced the hires of the negroes recovered by Fearn from Shirley. These negroes (or one-half of them) belonged to Fearn, under the special contract made between himself and the trustees in relation to the claim against Shirley. After they had been recovered and reduced [465] to possession, Fearn allowed the trustees to place his portion of them, as well as those belonging to the estate, in the hands of one of the Bibbs, for a series of years, without hires, for the purpose of extinguishing thereby Bibb’s residuary interest in the property, after the payment of the debts. In other words; Fearn allowed the trustees to use the services of his negroes in order to buy out the residuary interest in the fund of one of the original grantors. It is impossible to see how Fearn could thereby obtain any claim or lien upon the trust estate for the payment of the hires of the negroes. If, after receiving payment in full of his claim for salary in 1859, he had loaned back the money to the trustees for the purpose of buying out the residuary interest of one of the grantors, he would have acquired thereby no lien on the trust estate, any more than a stranger would have done by making such a loan. His claim for hire for his negroes stands upon no better footing. If we strike from the commissioner’s report the claim for negro-hire and the accumulations of interest thereon, it leaves only a few hundred dollars due, — hardly more than enough to defray the expenses of this litigation. Can a lien for this amount be asserted against the body of the trust estate? It seems well settled, that while trustees have a lien on the trust fund for all costs and expenses legitimately incurred by them in its administration, this privilege does not extend to agents employed by them, but such agents must look alone to the trustees for reimbursement. Hill on Trustees, 567; 2 Perry on Trusts (2d ed.), § 907; Jones v. Dawson, 19 Ala. 672. This principle is not disputed by the complainant as a general proposition, but it is insisted that a different rule must prevail here, because by the instrument creating the fund the expenses of administering it were expressly made chargeable upon the estate, and the trustees were given authority to appoint agents, who might “ do any thing which the said s'rantees [trustees! could do in execution of the trusts of said deed.” It is sufficient to remark that, without any stipulation to that effect, the expenses of administering a trust are always chargeable upon the trust fund, and that every appointment of [466] a trustee or agent to transact an extended and complicated business carries with it the power to employ suitable sub-agents ; so that the enumeration of these things in the conveyance in this instance was unnecessary. But yet it was in this very class of cases, where the imposition upon the estate of the expenses properly incurred by the trustee, and his power to employ agents or attorneys, were unquestioned, that the rule denying to such employés a lien on the estate was established. In none of them was any question raised as to his power of employing such agents, or as to the liability of the estate for the cost of administering the trust. It is impossible to see, therefore, how the insertion of the provisions in question can change the rule of law, in the absence of an express declaration in the instrument that the estate shall be liable for all costs and charges incurred by or owing to the sub-agents of the trustees. The case of Noyes v. Blakeman, 6 N. Y. 567, seems not to be in accordance with the views here announced. It was decided by a divided court in a case where an opposite view would have worked very great injustice, and was perhaps rested in some measure on the New York statute in reference to trust estates, which is wholly unlike ours. The decision seems exceptional, and no authority is cited in support of it. The complainant in the case at bar, having no lien upon the trust estate, is without standing in a court of chancery. The action of the court below in dismissing the bill is affirmed.