Napier v. Napier

By the Court.

delivering the opinion.

The error assigned to the judgment of the Court below is, the Overruling, the demurrer filed by the defendant to the complainant’s bill.

[1.] The object of the bill is to require the defendant to discover in what manner he has disbursed the sum of five’ thousand dollars, paid into his hands for the discharge of the complainant’s debts, and to account for the surplus, if any, which may remain in his hands after the payment of such debts.

The bill charges, that Thomas Napier, the father of the com-plainant, had irca'de his will and excluded him as one of the lega-tees of his large' estate; that during his last illness,-he repented the act, and just before his death, too late to make any alteration in his written will,- declared it to be his will and injunction, that out of the mass and residue of his large estate, bequeathed to his' residuary legatees, a reasonable pórtion or amount thereof, should* be set apart and secured for the benefit, maintenance and sup-port of the complainant. In pursuance of this request and in-' junction of the testator, his residuary legatees entered into a Written stipulation to carry the sam’e fully into effect. After re-1 citing the request and injunction of the testator as above expressed, the residuary legatees raised, by voluntary contributions, and-conveyed to Leroy Napier, the sum of fifteen thousand dollars, as a trust fund, for the following purposes, and subject to the fol-lowing trusts, namely: five thousand, dollars thereof, and not *408more, to the disenthrahiient of the complainant from the debts which he then owed — said trustee to judge of the justness of the debts which might be presented to him for payment, and of the order and proportions in which they should be paid; but in no event was more than five thousand dollars to be taken from the fuud of fifteen thousand dollars, for the payment of complainant’s existing debts.

The residue of said fund of fifteen thousand dollars, to wit: the sum of ten thousand dollars, to be vested in the trustee, and managed by him, for the use, benefit and support of the complainant, hs to him should be deemed best and 'most judicious. The only controversy is with respect to the five thousand dollars, directed to be appropriated for the payment of the complainant’s debts, by the trustee. The plaintiff in error insists, that the sum of five thousand dollars was held by him as a trustee, for the creditors of the complainant, and that, after the payment of his debts, he is entitled to • hold the overplus as a trustee for the donors of the deed. The answer to that view of the case is, that there is no reversionary clause in the deed, which entitles them to such over-plus-. The fifteen thousand dollars was conveyed by the donors to the trustee, in accordance with the wishes of Thomas Napiér, during his last illness, for the maintenance and support of the complainant, and is so stated on the face of the deed. The fifteen thousand dollars was raised and appropriated by the residuary legatees of Thomas Napier, deceased, for the benefit of the complainant, and not for the benefit of the donors, in any event, bo far as appears on the face of the deed itself. The debts, it is alleged, have all been paid, and, as we are bound-to presume, according to the d/iscretion of the trustee, consequently he is no longer a trustee for the creditors of the complainant. The complainant alleges, that the trustee has now remaining in his hands, the sum of three thousand dollars, of the aforesaid sum of five thousand dollars, after the payment of all his debts, and the question is, whether the trustee is entitled to keep it for his own me, or to retain it for the donors, or be decreed to hold it in trust for the complainant 1 There is no clause in the deed which will entitle the donors to the fund, conveyed by them for the benefit of the complainant, according to the wishes and injunctions of the deceased testator, as expressed on the face of the deed, and we are not aware of any principle by Which it will result to them by *409operation of law. The creditors of the complainant are not entitled to it, because their debts are all paid. The trustee is not entitled to it for his own use, for it is a well established rule in Equity, that a trustee is not permitted to make any profit to himself in any of the concerns of his trust. 1 Story’s Eq. §465. Docker vs. Somes, 2 Mylne & Keen, 664. We think that from a fair construction of this deed of trust, the complainant is entitled to the surplus of the five thousand dollars, after the payment of his debts, according to the discretion of the trustee. That discretion of the trustee in regard to the payment of the complainant’s debts, has already been exercised in their extinguishment. According to the allegations in the bill, there are not now any debts of the complainant in existence, with regard to the payment of which the discretion of the trustee can be exercised. The wishes and injunctions of the deceased testator, during his last illness, were, that out of the mass and residue of his estate, a reasonable amount should be set apart and secured as a fund for the maintenance and support of the complainant, and thedeed of 'trust purports, on its face, to have been executed for the purpose of carrying into effect such wishes and injunctions of Thomas Napier, the deceased testator. The leading object of the deed of trust was, to set apart and secure a reasonable amount of money, as a fund for the maintenance and support of the complainant. The payment of his just debts was for his benefit, and in the opinion of all honest and well disposed persons, would be considered at least necessary for his decent maintenance and support with credit to himself and his family connexions. The donors of the deed were willing that five thousand dollars of the fund raised for his benefit, should be appropriated for the payment of his debts, but no more. Well, his debts have all been paid, and there remains a balance in the hands of the trustee of three thousand dollars of the fund originally raised, for his benefit, by the residuary legatees under his father’s will, and in accordance with the request and death-bed injunctions of the testator, and we are of the opinion he is entitled to have the discovery prayed for from the trustee, and to have the surplus remaining in his hands, after the payment of all his debts, invested for his benefit.

Let the judgment of the Court below be affirmed.