Pennsylvania. Supreme Court.

Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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person. :

The respondent further alleged, that it was unknown to him
how far the said trust was accepted and acted upon ; and that he
had never accepted, assumed or undertaken the trust or any part

He further averred, that in 1832 he was called upon by Henry
J. * Williams, Esq., to know whether he would act as trus- r *oufi
tee in the premises ; that he continued to refuse to act as '
trustee, and in order that all persons might know that he had
never accepted or assumed the trust, he, at the instance of Mr.
Williams and by advice of counsel, on the 9th of April 1832,
executed the declaration mentioned in the bill, whereby he declared
and made known, that he had never accepted the trust; and that
he continued to renounce the same and would not intermeddle with
the same, or with the estate conveyed by the deeds creating the

That having caused this declaration to be duly recorded at Phil-
adelphia, he had declined to execute the proposed conveyance to
the complainants, mentioned in the bill, being advised by his coun-
sel that he was not required so to do.

The report of the examiner, to whom a reference was directed
" to take proof of the exhibits and facts in the case," set forth,
that on behalf of the complainants, "due and satisfactory proof
and exhibit" was made of the original articles of agreement, dated
20th February 1795 ; of the deed of the 5th March 1795, from
Morris and wife, Nicholson and wife, and Greenleaf, to Thomas
Willing, John Nixon, and John Barclay, for divers lands in Vir-
ginia ; of the deed of 9th March 1795, from the same to the same,
for divers lands in North Carolina; of the deed of the 5th March
1795, from the same to the same, for divers lands in South Caro-
lina; of the deed of same date, and from the same to the same,
for divers lands in Georgia; of an exemplification of a deed of
same date, and from the same to the same, for divers lands in Ken-
tucky, as the said articles and deeds are severally set forth in the
copies annexed to the bill; and lastly, that due and satisfactory
proof and exhibit was made of "the original record book and book
of minutes of the said North American Land Company, containing,
among other things, records of resolutions and proceedings at the
annual meetings of the said company, on the 31st days of Decem-

396 SUPREME COURT [March Term,

[Vaughan . Barclay.]

ber 1806 and 1807 ; containing the preamble and resolutions as
set forth in the said bill."

The cause now came on to be heard upon the bill, answer, and
the report of the examiner.

Mr. W. M. Tilghman, for the complainants.

As it is intimated by the counsel on the other side that the juris-
diction of the court over this case will be questioned, the author-
ities on that point will be first cited.

By the act of 16th June 1836, sec. 13, Purdon 237, this court
is vested with "the jurisdiction and powers of a court of chancery,
so far as relates to the control, removal, and discharge of trustees."
The compelling a trustee to discharge a plain trust, is clearly a
case within the operation of the word "control." The lands here
^OQ-T-I sought *to be conveyed are without the jurisdiction of the
J court; but it is well settled by numerous authorities, that a
court of chancery having jurisdiction over the person of a trustee,
may decree the conveyance by him of trust property lying without its
jurisdiction. Kildare v. Eustace, 1 Vern 419; Arglassev. Muschamp,
Id. 75 ; Penn v. Lord Baltimore, 1 Vesey 444 ; Nabob of Arcot v.
E. India Co., 1 Ves. Jr. 385 ; Lord Cranstown v. Johnstown, 3 Id.
170; Ex parte Prosser, 2 Bro. Ch. R. 325; Massie v. Watts, 6
Crauch 158 ; Mitchell v. Bunce, 2 Paige's Ch. R. 606.

From the admissions and proofs it appears that the complainants
represent the cestui que trusts of the trusts created by the deeds
of the 5th and 9th March 1795.

By the terms of the instruments creating the trusts, as well as by
the ordinary rule of equity, they have the right to call upon their
trustee to convey the legal estate. Is the respondent such trustee?
We say he is.

1. The legal estate was in John Barclay at the time of his death.
This is charged by the bill and not denied by the answer, which
merely alleges that it is unknown to the respondent how far the
trust was accepted and acted upon.

In the absence of proof, the presumption is that a trustee does
accept the trust. Wilt v. Franklin, 1 Binn. 502 ; Lewin on
Trustees 114, 118. The respondent's offer to convey in 1818,
goes far to show a previous acceptance by his father.

2. John Barclay then having accepted the trust, and having
survived his co-trustee John Nixon, such portion of the legal estate
as did not pass by the conveyance of the latter on the 27th of April
1808, vested in him alone; and on his death in 1816, descended
upon his heir-at-law, the respondent.

3. The legal estate being thus shown to have been vested in the
respondent in 1816, the question arises whether it has been
divested by the renunciation executed by him on the 9th of April


[Vaughan . Barclay.]

It is well settled that where a party has once accepted a trust,
either in fact, or by operation of law, he cannot afterwards dis-
charge himself from it by a simple renunciation. Lewin on Trus-
tees 132, 133; Doyle v. Blake, 2 Sch. & Lef. 245; Chalmer v.
Bradley, 1 Jac. & Walker 68 ; 4 Johns. Ch. 138.

[Mr. T. was here informed by the court that he need not press
this point.]

If then, as has been shown, the legal estate was in the respon-
dent, and it be conceded that his renunciation was nugatory, he is
still trustee, and the complainants are entitled to a decree.

Mr. Meredith, for the respondent.

1. The representatives of Morris, Nicholson and Greenleaf should
be made parties to the bill. It does not appear upon the face of
the *deeds creating the trust, that any shareholders in the r*oqo
North American Land Company are in existence, nor is '
there any proof of the fact, except that which may have been
afforded by the production of the alleged company's books before
the master. Upon this point the representatives of the grantors
have a right to be heard ; for in case no such shareholders exists
there is a resulting trust in favor of those representatives. If this
were a trust created by a will, the heir-at-law would certainly be
made a party.

2. The next question is, whether this court will decree a con-
veyance of lands without its jurisdiction. It is said that full
chancery jurisdiction over the subject-matter is given by the 13th
section of the act of 16th June 1836. But we apprehend that the
act of 22d March 1825, Purd. 998-9, establishes the system which
has prevailed in Pennsylvania, according to which when a new
trustee is to be appointed, it is done by decree only, without a con-
veyance from the party. Now if this conveyance be made by the
respondent, on his being found within the jurisdiction of the courts
in the state where the lands lie, they might compel him to convey
over again, and he might be exposed to serious inconvenience.

In all the English cases cited, where a conveyance has been
decreed of lands out of England, it has been where the lands were
in a subordinate jurisdiction as in the colonies, or in Ireland ;
but we ask to be shown a decree of conveyance of lands in France,
or other foreign country, as that alone would be a case analogous
to the present.

3. The respondent has never acted in the trust, and no one is
ever compelled to undertake a trust. Lewin on Trustees 525.
The acceptance of John Barclay does not sufficiently appear, for
though alleged in the bill, and not denied by the answer, the fact
should be proved. This is the more important as being (after what
has been intimated by the court) the point on which the whole case


[Vaughan v. Barclay.]

will probably turn ; for if the trust did vest in John Barclay, it
iriust be admitted that it descended upon the respondent, and he
cannot avoid executing it.

Mr. B. TilgJiman, in reply.

1. As to the necessity of making Morris, Nicholson and Green-
leaf's representatives, parties to the bill, we reply, that they can
have no interest, being estopped by the conveyances creating the
trust. We have shown that their conveyances became fully opera-
tive, and that the North American Land Company existed, by
showing the acts of more than two-thirds of the stockholders of
that company, representing 17,132 shares of its stock, in 1806 and
1807. This proof furnished by the examiner's report has not
been, and could not be excepted to, and the facts are of course to
be taken as true. The company thus existing, and having paid for
the lands in question, are the only parties beneficially interested,
*3QQ1 an( ^ tnere is? f course, no *resulting trust in favor of the

-1 heirs of Morris or the other grantors. This also appears by
the fact that Greenleaf, one of the grantors, in 1818 requested the
respondent to convey, according to the resolutions of the company
mentioned in the bill.

2. As to the jurisdiction of the court. If the act of 1836 was
not intended to enlarge the power conferred upon this court by the
act of 1825, why was it made at all? The word "control," in the
act of 1836, is of most extensive signification ; and as applied to a
trustee, will at least reach the ordinary case of compelling him to
execute a clear and undisputed trust.

As to the inconvenience which the respondent might suffer from
making this conveyance, by being made amenable to the courts of
other states, the decree of this court would surely be his protection.
The English authorities are not confined to cases of lands in sub-
ordinate jurisdictions. In Lord Cranston v. Johnston, 3 Vesey Jr.
170, the case of lands in a "foreign country,'' as distinguished
from the "British dominions," is expressly stated by the court to
be included in the general rule. See also 2 Paige 606, before

3. There is ample proof of the acceptance of the trust by John
Barclay. Thomas Willing renounced at once in writing. In 1808,
when John Nixon and John Barclay are called upon to convey,
Nixon conveys, and Barclay refuses to convey. This refusal is an
act under the trust. If he had not accepted, or if he had dis-
claimed the trust, he should then have said so. The admission by
the respondent of his willingness to convey, in 1818, is an admis-
sion that the trust was then in him, which could not have been
unless it had been accepted by his father. Then the presumption


[Vaughan v. Barclay.]

of law is, that a trustee accepts. Any ambiguity in his conduct
will create such presumption.

The opinion of the court was delivered by

GIBSON, C. J. All the uuconfessed parts of the bill are directly
proved but the acceptance of the trust by the respondent's an-
cestor. To supply the evidence of that, recourse is had to the
doctrine of implied acceptance, which, however, is applicable only
to a conveyance of the beneficial interest, and not to the convey-
ance of a dry title loaded with a trust. But is not presumptive
evidence of acceptances afforded, in this instance, by the circum-
stances and nature of the case ? The deed to the original trustees
was executed in 1795, and Mr. Barclay, being requested, in 1808,
to join in a conveyance to new trustees designated in an amendment
of the original articles, does what ? Denies that he had accepted
the trust? No such matter. He refuses to convey without assign-
ing any reason for it that we perceive ; and had he not accepted
the trust before, every principle of duty would have called on him
to disclaim it then. That he had left the company thirteen years,
under a belief that he was *one of its trustees, is evident , %. ~
from its call on him to discharge himself of the imputed '-
trust; and the existence of such a belief, undisturbed by one who
could have been no stranger to it, is evidence to charge him. From
the very course of such matters, a presumption arises that the deed
was presented to him, as it was to Mr. Nixon and Mr. Willing, in
order to complete the execution of it by delivery ; and as he ex-
pressly accepted it or expressly rejected it then, the company
could have been under no misapprehension of the state of the fact ;
and if it knew that he had rejected it, why call on him for a con-
veyance in 1807, or why this bill ? There is, then, at least a spark
of evidence that Mr. Barclay took on himself the burthen of the
trust; and to raise a doubt on the subject, is to make out the com-
plainant's case. What harm can befall the respondent, or what
responsibility can he incur from conveying without a covenant
against anything but acts done, or incumbrances suffered by him-
self? By the amendment adverted to, it was agreed "that the said
John Nixon and John Barclay, on making such competent convey-
ances or transfers, forever after be held harmless and blameless for
any, and all, neglects or pretended neglects, and for any and all
doings, which may have happened or accrued while they were con-
sidered the trustees of the company." Now if the trust descended
on the respondent's shoulders, this conventional aegis necessarily
descended on them along with it. But even without protection
from that, or from the direction of a court of chancery, to whom
could he become answerable for the execution of such a conveyance?
Not to the company who instigated him to do the act ; nor yet to

400 SUPREME COURT [March Term,

[Vaughan . Barclay ]

the company's equitable grantee who could not be prejudiced by
it. The complainants, therefore, seek to impose on him no heavy
or unconscionable burthen. This company, like many others
formed about the same time, was a partnership for the purpose of
dealing in land; and a suspicion of the soundness of its title would
be as ruinous to its business, as would a suspicion of insolvency be
to the credit of a mercantile firm. Without the relief sought by
the bill, the title to its land would appear to be imperfect on the
face of it ; and as this blemish can be removed without detriment
or inconvenience to any one, we are bound to consider the respond
ent's ancestor to have been an original trustee; and that point
being established, a decree to convey is of course

Decreed accordingly.

Cited by counsel, 4 Barr 230 ; 9 Harris 141 ; 6 Wright 344 ; 10 P. F. Smith
485 ; 1 Parsons 390.

Brought before the court again, 2 Barr 160.

*401] *[PHILADELPHIA, APRIL 8, 1841.]

Gossner's Estate.


1. Where a notice of the filing of an auditor's report is not required by
the rules of the Orphans' Court, it is not a sufficient cause of exception in
this court that the report was filed without notice to, or knowledge by the
appellant, and while the appellant was confined to her bed by serious sick-

2. Where it appeared that a minor son of an intestate had worked as an
apprentice for his mother, who was administratrix to the estate, and who
carried on the business after the death of the intestate, it was held, that she
could not deduct from his share of the balance of the administration account
in her hands, payments which she had made to or for him during the time
he had so worked for her, and which did not exceed the reasonable wages of
the business.

3. An auditor appointed to distribute among the next of kin the balance
in the hands of the administrator, has no jurisdiction of an adversary claim
of a creditor of the estate.

4. An administratrix held not to be entitled to charge counsel fees to the
fund, where she had made an unjust and vexatious defence to the claim of
the next of kin.

THIS was an appeal from a decree of the Orphans' Court for the
city and county of Philadelphia, in the matter of the estate of
Joseph Gossner, deceased.

The circumstances appeared to be as follows :

Joseph Gossner died intestate in the year 1830, leaving a widow,


[Oossner's Estate.]

who administered, and two children, Joseph Gossner and Amanda
Gossner; the latter of whom died, in 1833, an infant.

On the 15th of July 1831, the administratrix settled her ac-
count ; showing a balance due to the estate, of $1795.64.

On the 19th of April 1839, Joseph Gossner, the son, applied
for the appointment of an auditor, which was granted ; and the
account was referred to an auditor to report distribution only.

*The report of the auditor, which was filed on the 17th I-JMAJJ
of January 1840, stated that a claim had been made by the ^
administratrix upon the fund, for the maintenance and education
of Joseph Gossner, and sums paid to him from time to time during
his minority for pocket-money. That it appeared by evidence that
Joseph Gossner had worked as an apprentice to his mother in the
business of a potter, which had been carried on by the intestate,
and that he was of opinion that as an apprentice she was bound to
provide for him ; the expenditure not being more than was suitable
for such a condition.

The auditor also reported that a claim was made upon the fund
by Dr. Peter Binder, on behalf of his wife, for the sura of $500,
for services rendered by her to the intestate; and which it was
alleged he had directed to be paid. This claim was disputed by
the counsel for Joseph Gossner; and the auditor reported that
he had no power under the reference to him to take cognisance
of it.

The report also stated that a claim was made upon the fund by
the counsel for the administratrix, for compensation for their ser-
vices, but that he had disallowed it ; conceiving that it was a per-
sonal charge upon Mrs. Gossner.

The auditor charged her with interest upon the balance in her
hands from the 15th of July 1831, to the 15th of February 1840,
and reported that Joseph Gossner was entitled to two-thirds of the

The report was confirmed nisi; and, according to the practice
of the court, no exceptions having been filed, it was confirmed
absolutely at the April court.

On the 13th of March 1840, a citation was awarded to the
administratrix, to pay over to John Gossner the balance found to
be due to him. On the return of this citation, an application was
made on the part of the administratrix, to be allowed to file excep-
tions to the auditor's report, nunc pro tune ; which application
was founded on an affidavit, in which the administratrix stated that
she had no notice or knowledge of the report having been filed ;
and that she was confined to her bed by serious sickness at the
time it was filed; and had no funds in her hands, as administra-
trix, which John Gossner was entitled to receive. The following
exceptions were offered to the auditor's report.

402 SUPREME COURT [March Term,

[Gossner' s Estate.]

1. The auditor, against law and evidence, reported that the ex-
ceptant, the mother, was not entitled to receive any remuneration
from Joseph Gossner, one of the heirs, either for clothing, board-
ing, washing, or expense for moneys advanced after he attained
the age of twenty-one years.

*40S1 *^* -Because tDe auditor exercised jurisdiction on an ad-
' versary claim against a solvent estate, and reported against
the demand of Dr. Binder, by reporting distribution when the
claim was outstanding.

3. Because the claim of Mrs. Gossner for one-half the estate,
was an adversary claim, over which the auditor had no control.

4. Because the counsel fees should be taken from the estate, and
not from the share or portion of Mrs. Gossner, the administratrix.

5. Because interest was allowed when no funds were in the hands
of the administratrix ; and even if so, no demand was made for the

The Orphans' Court denied the application to file these excep-
tions ; whereupon this appeal was taken.

Mr. Q-oodman and Meredith for the appellant, cited Mylin's
Estate, 7 Watts 65 ; Rise's Estate, 5 Id. 157 ; Irwin's Appeal,
5 Whart. 576 ; Harland's Accounts, 5 Rawle 323, 330.

Mr, St. Gf-eo. T. Campbell, contra.

PER CURIAM. There is no substance in these exceptions. It
has not been shown that any rule of the Orphans' Court required
notice to be given of the filing of the report. The counsel, or the
party is to look to it ; and the appellant's sickness did not make
her case an exception. Then as to the maintenance. An auditor's
deductions of fact are to stand for the truth where there are no
evident misconceptions of the evidence ; and we are, therefore, to
assume that the appellee rendered the services of an apprentice de
facto to the appellant, his mother ; and it would be unjust to suffer
her, having received the benefit of them, to retract her disburse-
ments for him in that character. Unlike a father, she was not
bound to maintain him ; but, like a father, she might give him, on
the principle of the United States v. Mertz, 2 Watts 408, the
benefit of his earnings, and pay him wages as a laborer. Her
charges, therefore, for maintenance, clothing, schooling, and pocket-
money, were properly disallowed. Even did he not stand actually
in the relation of a servant, a presumption, unrebutted by the
proofs, would arise on the principle of Cummings v. Cummings, 8
Watts 366, that her disbursements were intentionally gratuitous ;
and if it would arise where services had not been performed to the
donor, how much more must it do so, where the maintenance haa


[Gossner's Estate.]

in some measure been merited by occasional contributions of lab^r.
As to the auditor's exercise of jurisdiction over adversary demands,
the truth is, that he refused to meddle with them, very properly
considering himself an organ appointed to a specific duty which
includes not the settlement of demands belonging to the administra-
tion account. 1 For the rest, it is certain that the appellee was not
entitled to be allowed counsel fees, *for maintaining an
unjust and vexatious defence: and she may think herself
fortunate in not being subjected to the costs of the appellee, as she
would have been, had the remedy continued to be an action at law.
The exception to the allowance of interest has not been seriously
pressed ; and as it is no better than its associates, it could not have

Decree and report of the auditor confirmed.

1 See 1 Wharton 9.

Cited by counsel, 8 W. & S. 403 ; 5 Barr 104 ; 10 Id. 144 ; 10 P. F. Smith

Cited by the court, 1 Harris 584 ; 2 Ash. 522.

|| The Orphans' Court now has jurisdiction to distribute a decedent's estate
among creditors as well as legatees, &c. : Hammett's Appeal, 2 Norris 3 ( J2,
and cases cited.

Where an auditor is appointed to distribute an assigned fund among cred-
itors, he has no power to pass upon a claim adverse to them : Wylie's Appeal,
11 Norris 196.

Where an administrator, &c., litigates the estate for his own benefit, he
cannot charge the estate with counsel fees thereby incurred: Hart/ell .
Brown, 5 Binn. 138; Withers's Appeal, 1 Harris 582; Price's Estate, 3]
Smith 263, 8. c. 3 W. N. C. 320.11


Zeibert against Grew.

To a scire facias in the District Court, upon a mortgage payable in one
year, brouirht by an assignee against the mortgagor, a terrc-tenant, appeared
and filed an affidavit of defence, setting forth that the mortgage was given
for the purchase-money of the mortgaged premises; that the mortgagee
agreed with the mortgagor that if the interest was regularly paid, he would
not call for the principal in ten years; that the interest was regularly paid,
but that the mortgagee received " an usurious bonus" from a terre-tenant ;
and that the deponent verily believed that the plaintiff in the suit did not
wish the mortgage sued out: Held, that this affidavit was not sufficient to
prevent a judgment under the act of 1835.

ERROR to the District Court for the City and County of Phil-

404 SUPREME COURT [March Term,

[Zeibert v. Grew.]

The action in the court below was a scire facias brought by
Henry Grew, assignee of Samuel Webb, against Henry Smith
and James M. Cooper, with notice to terre-tenants, upon a mort-
gage dated the 18th of August 1836, executed by Smith and
Cooper to Webb, to secure payment of a bond of the same date,
with condition for the payment of the sum of $4000 in one year,
with interest.

* OA-I *John S. Zeibert, the terre-tenant, appeared and filed the
-" following affidavit of defence.

" John S. Zeibert, the terre-tenant, being the owner of the prem-
ises bound by the mortgage on which the above suit is brought,
being duly affirmed, saith he hath a just and lawful defence to the
whole demand of the plaintiff of the nature and character following,

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 45 of 75)