Thornburg v. Macauley

The Chancellor entertained no doubt when the petition of Mr. Latrobe was filed, nor does he now, that the decree then recently passed was entirely within the control of the court, and that upon a proper case, it could be rescinded, or modified in any way which justice might require. He was equally satisfied then, and he is perfectly convinced now, that the petitioner was entitled to represent the creditors of the late Dr. Macauley, in whose behalf he appears, and this, not only because such is the legal presumption arising from the fact of his appearing for them, but because the evidence filed in the cause fully establishes his authority. The case of Henck vs. Todhunter, 7 Har. & Johns., 275, is conclusive to show that whatever is done by the attorney in the progress of the cause is considered as done by the authority of the party, and is binding on him.

*428I consider, therefore, Mr. Latrobe as representing in law, and in fact, the American Life Insurance and Trust Company, and the estate of Joseph Thornburg, and though the assets of the former have been assigned, and some of the cestui que trusts of the latter, have declared their dissent to the prayer of the petition, I do not, on that account, conceive that he has no standing in court, or title to be heard. The proof shows that the surviving assignee of the company sanctions and approves of the course, and though some of the cestui que trusts of the estate of Joseph Thornburg do not concur with the petitioner, there are other parties interested who can only be represented by him.

I do not agree, however, with the petitioners’ counsel in thinking, that if loss to the creditors represented by him occurs, in consequence of the proceedings in this case, that any responsibility for such loss would be thrown upon him. Of the jurisdiction of this court to decree a sale of the property there can be no doubt, and if loss should happen by reason of the neglect or default of the agents selected to make the sale, which, however, is by no means probable, as it is conceded by the petitioners that they are in every way worthy the confidence 'of the court, it would seem impossible to contend that such loss would fall upon a party, no way responsible for such selection. If there should be loss under such circumstances, it would be a misfortune incident to the administration of justice, but the fault of no one, and for which no one would be answerable.

The case then to be considered is simply this: a decree passed this court on the 22d of last month, for the sale of the real estate of the late Patrick Macauley, for the payment of his debts, upon an ascertained deficiency of the personal estate for that purpose, and trustees, representing the parties to the suit, are appointed to make the sale. Two days subsequently, creditors to a large amount come in, and upon the ground of surprise, ask that the decree may be so far modified, as that a trustee named by them, may be associated with the trustees already appointed. It is not denied, but on the contrary is admitted by the petition, and by the petitioners’ counsel in his oral argument, that the trustees appointed by the decree, are every way *429deserving the confidence of the court, and, therefore, it is not to be apprehended that loss will result to the creditors, or heirs at law of the deceased, by the refusal of the court to grant the application; and, therefore, so far as concerns those who are the peculiar objects of its care, no very urgent reason seems to exist for its interposition. It is true, that in the selection of trustees, this court, as has been observed upon several occasions, will always give due weight to the wishes of those who are interested in the result of the sales, and, that in creditors bills, the recommendation of a majority in amount is seldom disregarded. If, therefore, the creditors represented by Mr. Latrobe, had made their wishes known prior to the decree, it can scarcely be doubted that they would have been gratified. But they come after the decree, and without stating any circumstance affecting the fitness of the persons appointed by this court, to discharge faithfully the trust confided to them, they ask that the decree be opened, to let in a new trustee of their selection.

The Chancellor has carefully considered the subject, and has come to the conclusion that it would be establishing an inconvenient and embarrassing precedent to grant the application. There may have been some surprise in the matter, but I am fully persuaded, nothing was done by the parties, or their counsel, on either side, which can be regarded as indicating a disposition to secure an unfair advantage. Unless something of this sort is shown, and in the absence of any imputation against the capacity or fidelity of the trustees, it seems to me, upon mature reflection, it would be wrong to open the decree.

The petitioners’ counsel, though not one of the trustees to make the sale, will, of course, observe the proceedings of those who are, and will, with his accustomed ability and diligence, superintend the interests of his clients, and, therefore, I can see no substantial ground upon which the decree can be disturbed. That the parties whose rights are to be affected will be likely to suffer, is not alleged, and hence, as I conceive, the prayer of the petition cannot be granted. The Chancellor thinks he can only look to the interests of the parties to the suit, arid, *430that unless some ground touching their rights can be shown, he would be making a bad precedent by opening a decree for the purpose asked.

Upon the whole, he thinks, the petition must be dismissed, and the trustees left at liberty to proceed, but under the circumstances of the case, costs will not be allowed.