Tucker v. Cocke

Fisher, J., delivered tbe opinion of tbe court. , Tbe objects intended to be accomplished by this bill were, to compel tbe defendant, Stephen Cocke, to account for tbe profits of certain property, alleged to have been bolden by him in trust for tbe complainants and others; and to have a division of tbe property among tbe several parties entitled to tbe same. We may pass over, without comment, so much of tbe answer as denies tbe acceptance of tbe trust by tbe defendant, or as questions tbe right or power of tbe donor to make tbe conveyance in this manner, of tbe property. All tbe circumstances tend to show an acceptance by tbe trustee, and after such acceptance, be, perhaps, upon well settled rules of law, would not be permitted to question tbe donor’s power to convey, on tbe ground that be bad previously conveyed to another, unless that other bad asserted, and succeeded in establishing a claim to tbe property, under such prior title; and so far from this latter position being sustained, tbe reverse is made to appear by tbe deposition of one witness, and other corroborating circumstances. We may, therefore, safely assume tbe existence of tbe trust, and tbe question is as to tbe nature and extent of the duties which it imposed upon tbe defendant. Tbe deed is made to tbe said Stephen Cocke, as trustee, and in trust for tbe parties (interested,) &c. Tbe deed prescribes no particular duty to be performed in relation to tbe property by tbe trustee, but be appears merely to be tbe depositary of tbe legal-title, for tbe use and benefit of tbe parties who were tbe peculiar objects of tbe donor’s bounty. Tbe use was intended, from tbe very nature of tbe instrument, to be transferred and vested in tbe beneficiaries, and was, in fact, executed tbe moment tbe trustee, as be is denominated in tbe deed, delivered tbe property to tbe usees. Hutch. Code, 610, § 28. There is no proof that the slaves ever were, at any time, in tbe actual possession of, or under tbe control of tbe defendant, but on tbe contrary, it is averred that they were delivered, a very short time after tbe execution of tbe deed, to Mrs. Buckingham, tbe mother of tbe other beneficiaries in the deed. This being tbe nature of tbe estate vested by tbe deed in tbe defendant, he could only be made liable for such sums of money as be received on [189] account óf tbe profits arising from the labor of the slaves, and there is not even a pretence for saying that he ever received a dollar, or derived any benefit whatever from the trust property. The bill, therefore, so far as it seeks an. account in this respect,' being wholly unsustained, was properly dismissed. But little remains to be said in regard to the other aspect' of the case, so far as it seeks a division of the property. Mrs. Jane Buckingham, by her answer, sets up a claim to the slaves under a bill of sale, alleged to have been executed to her by the donor in the deed of trust, prior to the execution of said deed. This not being matter responsive to the bill, must, of course, be proved; and it is sufficient to say, that the alleged bill of sale was not pro-' duced on the trial, or any effort whatever, made to prove its contents ; but, on the contrary, the proof is clear that as late as the' year 1850, after the death of her husband, Nathaniel Buckingham, she asserted a claim under the deed of trust, and spoke of the slaves as the property of herself and children. This claim she asserted against the claim set up by her husband’s administrator. Under this attitude of the case, she cannot object to a division of the slaves, according to the rights of the parties under the deed. It is next insisted that, as the slaves appear to have been under her control and management since 1822 up to the time of filing this bill, she ought to account to the complainants for their portion of the profits. It will be borne in mind that the slaves were conveyed to the defendant, Cocke, in trust for the use and benefit of Mrs. Jane Buckingham and her children, by name, of whom the complainant, Mrs. Tucker, is one. It may, of course, be asserted, that the several beneficiaries were equally interested in the slaves. And it may be admitted, for the sake of the argument, that the deed created a separate estate, both as to the interest of Mrs. Buckingham in the slaves, and as to the profits. Yet, she would not be liable to account to her co-tenants for their share of the profits received during the lifetime of her husband, for the obvious reason, that she could not contract to become their agent, to manage their estate, or to be a bailiff to receive their money, while she was a feme covert; and where she had no power to make an express [190] contract, the law will not imply one. The presumption would be, that the money was received by her husband, and the account could, therefore, only be made against his estate. It is shown that the husband died in 1849; up to that time, therefore, the bill for an account cannot be sustained. As to moneys received since the death of Nathaniel Buckingham, the bill might be sustained for an account in favor of complainants, if the bill had been framed with that view against Mrs. Buckingham, but it is not so framed. It is only necessary to remark, in conclusion, that the defendant, Stephen Cocke, is only a necessary party, for the purpose of a division of the slaves, and that he is in no manner liable to account. The decree of the chancellor is reversed; so much of the bill as- prays an account against the defendant, Cocke, is dismissed, and cause remanded, to be proceeded in according to this opinion, for a division of the slaves.