Lee vs. Chisholm et al.

want of available assets, of his loss of assets by the effects of the war, notes founded on slave debts, and other misfortunes incident to the times. The remaindermen and their interest are totally ignored. It is true, that after this decree was had by her against him, and the execution issued thereon was levied upon his individual property, he filed a bill of review and obtained an injunction restraining the collection of the money out of his private property; but even then he does not set up the rights of these remaindermen or make any prayer for their protection. His whole mind seems to be so engrossed with the care of his own interest that the trust committed to him by the testator seems to have been left to take care of itself. He expressly disclaims in this bill for injunction, that he contests what she asks for, but says only that the estate is not worth the money. His exact language in this sworn bill. is, that "he made no resistance, and was not disposed to contest any matters with her;" and in another part of the same bill he adds, that "he did not, and does not now, pretend to resist;" and every allegation in this bill shows defense of self, not of the trust. This court ruled that the estate of Mrs. Henderson, under this will, in this money, was only a life estate, and that it was his duty, as a trustee, to protect it for those entitled to it in remainder. He has not attempted to do this; if he had tried and failed, he might have been excused, but he seems to have made no effort at all. His proper course would have been to file a cross-bill making the remaindermen parties, and having their rights as against the life-tenant adjucated by the court, all the parties being before it. Failing to do this, he should at least have called the attention of the court to their interest, and had it passed upon in some form. The answer of Mrs. Henderson to his bill to review the first decree, discloses a state of facts not very creditable to her son-in-law, and certainly not entitling him to demand that a court of equity strain its powers in his behalf. It seems from that answer, verified by the facts of the case, that he left her without a cent from 1864, when her husband died, (and he was charged by the will to take care of her, and

Lee vs. Chisholm et al.

see that she had the interest upon this fund, left her by her husband,) up to 1871, one year before she died, without paying her one cent. It seems from the facts that his excuse that he had no funds of the estate with which to pay her the interest, was but a flimsy pretext; one of the Hendersons exchanged a note he owed the estate for one that the executor owed him, and thereby the executor himself became indebted to the estate $1,800 00, or some such sum. He could have paid her at least the interest on that from year to year; for this exchange of notes appears to have been made soon after the close of the war; and thus, for a long time he had interest in his hands belonging to her with which to pay her.

2. In respect to the refusal of the court to charge, at the request of defendant's counsel, that these remaindermen were concluded by the decree in favor of Mrs. Henderson, it is unnecessary to repeat, after what we have already said, that we do not think their rights were adjudicated in that litigation, and therefore we think that the court did not err in refusing so to charge.

3. It remains to consider a single question, which is, is the verdict contrary to evidence, or rather, is there evidence enough to support it? That verdict was for each of the complainants, $630 09. There were nine remaindermen in all, which makes the whole amount which the jury found in the hands of the executor, $5,670 81. The decree was rendered on the 25th of September, 1875; the proof is that Mrs. Henderson died in October, 1872, so that there was interest due upon whatever corpus should have been in his hands for the remaindermen at her death for nearly three years. He, himself, admits in his answer available assets to the amount of $5,139 13, without computing any interest; the testimony of Henderson shows that the amount of indebtedness which the executor assumed in exchange of notes with him, was nearly, or quite, $1,800 00, instead of $1,441 13, which he admits, which would add more than $300 00 to the corpus with which he is properly chargeable. It was his duty to have preserved this corpus, paying only the interest to Mrs. Henderson. The

Lee vs. Chisholm et al.

interest on it, since her death, counting but for two years, would exceed the verdict of the jury, when, added to the principal; the interest on what he admits himself, in his answer, without contesting that answer with the testimony of Henderson, counting it from the death of Mrs. Henderson to the date of the decree, would exceed this amount found by the jury. We have not passed unheeded the argument of defendant's counsel, that the larger portion of the verdict in favor of Mrs. Henderson was probably for interest, and that this interest should be deducted from the entire sum found, and the balance only would be the corpus. The reply is, that under the rulings of this court, when this case was here before, and also, under the same principle ruled in 20 Georgia Reports, the corpus could not be infringed upon to pay interest, but the fund should have been invested and the interest paid to the life-tenant annually, and the corpus saved for the remaindermen at her death. In any view which we have been enabled to take of this case, in the light of the decisions heretofore rendered by this court, and of all the pleadings and evidence which this voluminous record developes, after a careful examination of the law and the facts, we are forced to the conclusion that the verdict is right, and we therefore decline to control the discretion of the court below, before whom the case was tried, in refusing to grant the motion for a new trial. No returns, except the inventory and appraisement, were ever made by the executor, nor is there evidence to show any legal administration of the assets which came to his hands belonging to the estate in the payment of debts. He accounts for many of the assets, and shows their loss; but those which he admits were good are enough to satisfy the corpus of the fund found by the jury; and these he does not show satisfactorily In respect to coun

were ever otherwise legally administered.

sel fees and costs, it is enough to say that they were incurred in his own defense and not in defense of his trust; and as he made no returns, and failed legally to administer the estate, he should not receive commissions.

Judgment affirmed.

VOL. LVI. 10.

Winslow vs. O'Pry.

W. C. WINSLOW, trustee, plaintiff in error, vs. ADAM O'PRY, for use, defendant in error.

1. The declaration at law upon a claim against a trust estate, must show on its face that the claim is for services rendered to the estate, or for articles, property or money furnished for the use thereof, or allege other facts sufficient to make a case where a court of equity would render the estate liable for the payment of the claim.

2. The execution must specify the property on which the same is to be levied. This requirement, since the execution must follow the judgment, renders it necessary that the judgment, also, should specify the property. And, as the judgment should conform to the pleadings, the property must, first of all, be specified in the declaration,

3. In a suit upon a note given by the trustee, a declaration which does not set forth any trust estate, contains no cause of action against the trust estate; and a judgment by default rendered against the trust property, will be set aside upon motion.

O'Pry, for the use of Jones, brought complaint against "W. C. Winslow, trustee, and Eliza N. Winslow, his cestui que trust," on a note dated February 1st, 1871, due one day after date, for $140 00, and signed "W. C. Winslow, trustee for his wife." The declaration was in the statutory form, with this additional allegation: "Your petitioner further showeth that said note was given for cotton seed furnished for the use of said trust estate." What constituted the trust estate was not alleged.

No plea being filed, judgment was rendered by the court against the defendants for the amount sued for, to be levied on certain described land "on which the defendant now lives, and any other property which may be found in possession of W. C. Winslow belonging to said trust estate."

The execution directed that the amount recovered be levied of the same land as was set forth in the judgment, describing it in the same words, except that the description concluded, "on which defendants now reside." No reference was made to any other property.

Tufts vs. Little.

Winslow, trustee, moved to set aside said judgment, because the declaration did not set forth the trust property, because the judgment did not conform to the declaration, and because the execution was not in accord with the declaration and judgment. The motion was overruled, and he excepted.

WINSLOW & BRANHAM, by W. S. WALLACE, for plaintiff in error.

W. E. COLLIER, by brief, for defendants.

BLECKLEY, Judge.

The view which we take of this case is fully developed in the head-notes. The declaration, considered as an action aimed against the trust property, was fatally defective in not specifying any such property. It did not even allege directly that there was any trust estate. Whether a judgment upon it might have been rendered against the trustee, personally, we need not consider, as no such judgment was rendered. That which was rendered should have been set aside as unwarranted by the law applicable to the pleadings. Judgment reversed.

ORRIE TUFTS, plaintiff in error, vs. WILLIAM LITTLE, administrator, defendant in error.

When the vendor of lands puts the vendee in possession thereof under a bond for titles, and the vendee has remained in possession some four years, enjoying the rents, issues and profits thereof without having paid anything either on principal or interest of the purchase money, and the premises, by reason of no repairs and bad cultivation, are daily deteriorating in value, so as to have become insufficient to pay the debt due thereon, and the vendee has become insolvent and gone into voluntary bankruptcy, and the vendor applies to a court of equity for an injunction against further waste of the land and use of the profits, and also for a receiver to take charge of the same and preserve the rents, issues and profits to abide the final hearing: Held, that there is equity in the bill, and that this court will not control the discretion of the court below in granting the injunction and appointing a receiver.