Sollee v. Croft 7 Rich. Eq. 34, 28 S.C. Eq. 34

Frederick W. Sollee and Lydia G. Sollee, by next friend, vs. Randal Croft, et al., Ex’ors.

Trustee, who claimed in his returns a balance as due him on account of the trust estate, and who had placed the trust negroes in the possession of F., the cestui que trust, before he arrived at age, denied to F., shortly after he arrived at age, any liability further to account to him as trustee: — Held, that the denial gave currency to the statute of limitations, and that F.’s bill for an account was barred after four years.

Doubted by Wardlaw, Ch., whether a creditor is entitled in Equity, as at law, to nine months, in addition to the four years allowed by the statute of limitations, within which to sue the executor of his deceased debtor.

Orders obtained upon the ex parte petition of the trustee do not bind the cestui que trust as estoppels.

Where a trustee to sell purchases without leave of the Court, it is absolutely at the option of the cestui que trust to have á re-sale, or to hold the trustee to his purchase.

The trust negroes had been sold by the trustee on credit and the purchase-money secured by bond and mortgage of the negroes. The trustee bought one of the negroes on his own account from the purchaser, and gave credit on the bond. Afterwards, by leave of the Court, the contract of sale was rescinded: — Held, that as to the negro so purchased by the trustee, the cestui que trust might claim the negro, or the money, at his option.

Held, further, that the trustee, under the circumstances in proof, must account for interest, or hire, from the time he sold until the rescission.

Also that the trustee, upon the proof made, must account for the value of a negro, which before the rescission had been sold by the sheriff as the property of the purchaser.

BEFORE WARDLAW, OH., AT GREENYILLE, JUNE, 1854.

Wardlaw, Ob. This is a bill by the plaintiffs, two of the children of Florida or Florilla P. Sollee, for an account of a trust estate, of which the testator of defendants, Edward Croft, was the settlor, and became the trustee.

Edward Croft, late of Greenville, on June 23, 1829, con*35veyed by deed to George Croft and Richard Harrison, fifteen slaves, and some horses, mules, cattle, hogs, household and kitchen furniture, and farming tools, in trust for the sole and separate use of his daughter, Florida P. Sollee, then the wife of Frederick W. Sollee, the elder, for the term of her natural life, and at her death for the issue of her body living at the time of her death. The trustees named in the deed never accepted the trust, and the settled property passed into the possession of Sollee and wife. In the year 1885, Sollee removed with his family and the trust property to Marengo County, Alabama, where he established a plantation, and continued to reside until his death, in October, 1837. He was unsuccessful in his management, and was much embarrassed with debt at the time of his death ; and his creditors attempted, by suits against his widow, Florida, who, it seems, became his administratrix, to render the trust property liable to his debts. She remained in possession of the trust property until about Christmas, 1838, when, by a stroke of paralysis, she became blind and bedridden, and greatly enfeebled in mind and body. She was soon afterwards removed to the house of her brother-in-law, Bird M. Pearson, where she remained nearly a year. In the course of the year 1839, Bird M. Pearson, under the instructions of Edward Croft, sold most or all of the trust property except the slaves, and in some way accounted with his principal. He also received and accounted for the balance of the cotton crop of 1838. In the fall of 1839, Edward Croft removed his daughter, Mrs. Sollee, two of her children, the plaintiffs, and Martha and four children, five of the trust slaves, from Marengo to Greenville, S. C.; the eldest child of his daughter, Edward C., having been brought back, probably in 1838. Florida P. Sollee died in the fall of 1840, leaving as her issue three children, Edward C., Frederick W., and Lydia G.

On June 25,1839, Edward Croft, upon his own petition, was provisionally, by the order of the Court of Equity for Green-*36ville, substituted as trustee for George Croft and Richard Harrison, under the deed of June 23, 1829 ; and on October 15, 1840, he became trustee by complying with the prescribed condition in the order of the Court, and gave his bond in the penalty of twenty thousand dollars, with his sons, Randall and Theodore, as his sureties for the faithful performance of his trust. It is quite clear, that before his authority as,trustee was formally consummated, Edward Croft had undertaken the management of the trust estate, to a great extent. In his returns as trustee to this Court, he charges two hundred dollars, in April, 1838, for the travelling expenses of a trip to Alabama concerning the trust estate, and bringing back Edward C. Sollee to Greenville, and three hundred and twenty-five dollars for a like trip, in November and December, 1839, and bringing back Mrs. Sollee and the plaintiffs, and Martha and four children. These charges, with an additional item of one hundred and fifty-five dollars, for a third trip in October, 1841, were allowed to the trustee, (after an abatement of eighty dollars,) upon his petition, by order of this Court, in June 1842, and the last sum was again allowed by order of June 26, 1843, for a trip in 1842. These, however, are small matters compared with the transaction of 1839. At that time, Edward Croft sold twenty of the trust slaves, being all the slaves except Martha and her children, to his son-in-law, Bird M. Pearson, for ten thousand dollars, with interest, at eight per cent., from January 1, 1840, secured by the bonds of B. M. Pearson, and his brother, President Pearson, payable in five, six and seven years, from said January 1, 1840, and by a mortgage of the slaves sold. It is alleged that this sale was made under an order of the Court of Chancery, in Alabama, granted' by my excellént friend and preceptor in the law, Chancellor Bowie, but formal proof of the fact is not made.

On January 15, 1842, upon the petition of Edward Croft, this Court passed an order granting him leave to sell Martha *37and her children, at such time and place and on such terms and conditions as he might think most advantageous to the beneficiaries. Instead of selling these slaves, he had them appraised by some of his neighbors, and took them for himself at the appraisement of twelve hundred dollars. I do not perceive in the voluminous documentary evidence, that this act of the trustee was ever affirmed by the Court, beyond the passing of his annual returns by the Commissioner of the Court, in the course of which, and in some of the trustee’s petitions, the fact of his purchase of these slaves, at the price named, is mentioned.

On November 30, 1843, this Court, on the petition of Edward Croft, and the report of the Commissioner that B. M. Pearson and President Pearson were hopelessly insolvent, and that slaves had much depreciated in price since January, 1840, and, generally, that the recision was for the benefit of the beneficiaries, granted an order, that the trustee he allowed to accept from B. M. Pearson a surrender of the mortgaged trust slaves and their increase, discharged from other claims and incumbrances, in satisfaction 'of Pearson’s bonds for the purchase of the slaves; and further, that the trustee, after receiving the slaves, might sell them on such terms as the Commissioner should approve. Edward Croft had previously purchased from B. M. Pearson two of the trust slaves, Frances and her infant child, for six hundred and fifty dollars, which sum was credited on the bond. And about the time of the foregoing order, probably in anticipation of it, Bandall Croft, as agent of his father, received in satisfaction of Pearson’s bond and mortgage twenty of the slaves, which, with Frances and child, were all the slaves which had been sold to Pearson, except a boy, Jim, which had been sold by the sheriff for Pearson’s debts; and B. Croft brought back to South Carolina, at an expense of three hundred and fourteen dollars and thirty-seven cents, all of these slaves except Chaney, who died on the road. Edward Croft retained the negroes under his *38control until about October 20, 1845, when Edward Sollee attained full age; and at that time the trustee made division of them into three parts, and delivered six of them to Edward Sollee, as his portion; and Edward Sollee gave a receipt for them in full of his share, which receipt contained many expressions of gratitude for the benevolence and generosity of his grandfather. About the same time, the trustee delivered provisionally to the plaintiff, Frederick W., seven of the slaves as his portion, he being married, although yet a minor, and desiring to employ himself in farming. On October 17, 1846, the plaintiff, Frederick, still a minor, gave a receipt for the hire of his portion of the slaves, as received from the trustee through Randall Croft, to whom they were nominally hired, by the request and arrangement of the said Frederick. On May 3, 1848, Frederick W. Sollee gave another receipt to Randall Croft, for the hire of the slaves assigned to him on the partition (as he says, with his sanction), for the years 1847 and 1848. It appears that Frederick W. Sollee attained the age of twenty-one years on May 19, 1848; and immediately after-wards, in the course of the same month, he, with his father-in-law, Richard Ward, examined the returns of the trustee in the Commissioner’s office ; and although dissatisfied with them, as exhibiting a balance of money in favor of the trustee, and at first refusing to give a release to the trustee, who insisted that the negroes, which had been in Frederick’s possession for some years satisfied all of his claims under the trust deed ; yet, on November 7, 1848, said Frederick W. did execute a full release to the trustee, in consideration of the negroes delivered to him, of all claims upon the trust estate. The bill alleges that this release was executed by the said Frederick, in mistake of his rights ; but the proof of Richard Ward is, that it was executed upon his advice, from considerations of harmony in the family, and from inducements of legacy held out by Edward Croft to his grandson.

Upon the division of negroes by the trustee, seven were *39assigned to Lydia G. Sollee. On February 7, 1846, this Court, upon the petition of the trustee, sustained by the report of the Commissioner, ordered that the trustee have leave to sell these slaves of his ward, Lydia, in his discretion by public or private sale, on a long credit, with interest from the day of sale. On October 22, 1846, the trustee procured these slaves to he appraised by competent neighbors, C. B. Attwood, E. Waddell and Randall Croft, and took them to himself at the appraisement of one thousand nine hundred and seventy-five dollars, and deposited with the Commissioner of the Court his bond with sureties for this sum, and his mortgage of the slaves. On June 1, 1848, an order of this Court was passed, founded on the petition of the trustee and the report of. the Commissioner, that this arrangement for the trustee’s taking the negroes of Lydia to himself, should be affirmed.

All of the orders of this Court which I have recited in the matter of this trust estate, were upon the ex parte petitions of Edward Croft, without bringing the beneficiaries formally before the Court; and, as to the matters outside of the personal knowledge of the Commissioner, were founded on the evidence of the two sons of the trustee, who were the sureties to his official bond.

The plaintiff, Lydia, now in her nineteenth year, has resided in Charleston with her paternal relations since the death of her mother, without expense to the trust estate.

Edward Croft died in September, 1851, leaving of force his will, dated September 17, 1851, and admitted to probate on October 1, 1851, whereof the defendants (and Robert Cunningham, who did not accept) are appointed executors, whereby, after some specific legacies, he devised the residue of his estate to his two sons, Randall and Theodore, and his daughter, Mrs. Pearson, without any legacy to his grand-children, Sollee. The portion of Mrs. Pearson, except some articles of plate, is given to his executors in trust for her sole and separate use, without liability for her husband’s debts or contracts.

*40This bill was filed on April 4, 1853, and the defendants mainly rely on the bar of the statute of limitations, and the estoppel of the plaintiffs by the decrees of this Court.

There is no serious pretence that the plaintiff, Lydia, who is still an infant, is barred by the statute of limitations, but the question as to the other plaintiff under the statute, is full of hazard to him. Frederick W. Sollee did not file his bill within four years and nine months after he attained full age, and was informed by his trustee that all claim beyond the negroes in this plaintiff’s possession, was resisted by the trustee; nor within four years after the date of his release to the trustee.This extension of the term of four years, provided in the statute of limitations as the bar to account, assumpsit, &c., to four years and nine months, grows out of the exemption for nine months of executors and administrators, by the Act of 1789, (5 Stat. 112,) from “ any action for the recovery of the debts due" by their testators or intestates. Upon construction of the statute of limitations, it has been held that the bar should be suspended for the term during which the claimant was inhibited from suing. It is not settled that this exemption of executors and administrators from suit for nine months, and the consequent extension of the term of bar, are applicable to proceedings in equity. A bill in equity is not strictly an action; and a claim for account is not, strictly, a suit for a debt. In practice, many bills are exhibited against representatives within the time of nine months from the dates of death of their testators and intestates; and without troubling myself to look for precedents, I remember a case in our last volume of Reports of that description. Duke vs. Fulmer, 5 Rich. Eq. 122, was a bill for account against administrators filed within six months from the death of the intestate. In Joyce vs. Grunnels, 2 Rich. Eq. 259, an administrator objected, in his answer, that the bill had been filed within nine months from the death of his intestate, and therefore prematurely; but the Court held that this objection was in the nature of a dilatory plea — not a plea *41in bar — and was overruled by his answer. In Sarter vs. Gordon, 2 Hill, Ch. 137, the Court said, that if it appear on its face, that a bill has been prematurely filed, demurrer on this score will be fatal; and that, without demurrer, if the cause be brought on for trial before the proceedings should have been instituted, the bill should"' be dismissed; but that was a case affecting the time fixed by the parties for the performance of a contract, and not relating to the Act of 1789; and, in point of fact, the Court sustained the bill and executed the contract, not enforceable when the bill was filed, because, for another object, the bill was not premature. It is always within the power of this Court, by suspension of the suit or other administrative order as to costs and time of execution, to protect a defendant from the too prompt pursuit of claims against him. Proper time for the investigation of the affairs of an estate, without reference to the time of filing a bill against him, may be always secured to a representative, in exemption of any improper personal liability on his part. To declare that he is exempted from proceeding by bill against* him absolutely for nine months, merely for the purpose of postponing the time within which the estate and himself can be quieted and protected, is not generally desirable. While, however, I do not distinctly perceive the reason why this plaintiff should not be barred by the term of four years, I place my decision on the ground, that allowing him the additional nine months, he is still barred. In my judgment, the statute began to run against him when the trustee declared to him, in May, 1848, that he denied all liability on account of the trust beyond the negroes already in possession of this plaintiff. This act disturbed the fiduciary relatiou between the parties, and put them in the position of strangers. As between the beneficiaries and trustees, express trusts are not within the scope of the statute of limitations; but if a trustee of this description perform an act importing an end of his fiduciary character, the statute begins to run in his favor from the date of such act. A settlement made by the *42trustee with the beneficiary apparently in full, or such settlement in part, with claim of the remainder in his own right, and denial of further obligation to the beneficiary, are among the acts which create an origin for the bar of the statute. See Broclcington vs. Gamlin, 4 Strob. Eq. 197, and Long vs. Gasón, 4 Rich. Eq. 63, where our cases on this point are collected. I am of opinion that the refusal of the trustee of liability to Fred. W. Sollee, in May, 1848, when the latter was of full age, and in possession of all the share conceded to him in the trust estate, accompanied by the claim, of the trustee to a pecuniary balance from this beneficiary on account of the trust estate, dissolved the fiduciary relation between the parties, and formed a starting point for the statute of limitations. Of course, on this view, the bill must be dismissed, as to this plaintiff. It is alleged, however, that he executed his release in mistake of his rights. In point of fact, it is not true that there was such mistake, for himself and his father-in-law before the release, had examined the accounts current of the trustee, and both were then dissatisfied with the result, and afterwards acquiesced from expectation that the just claims of the plaintiff might be otherwise reimbursed. The disappointment of the plaintiff of a legacy from his grandfather, cannot be relieved in this suit, for no such case is within the pleadings; and if such ease had been made, I should have hesitated long before treating vague promises of remembering one in a will, as a fraud in the testator, entitling the disappointed on.e to compensation from the testator’s estate.

The plaintiff, Lydia, in any view of the case, is entitled to an account; and the questions between her and the defendants relate principally to the subjects and measure of the accounting. I shall hereafter speak of her as the plaintiff. The defendants insist that she is estopped by the decrees of the Court, made on the petitions of her trustee, and is bound to accept her share of the moneys into which the trust estate has been converted under these decrees. If this defence were stable, it would not *43shelter Martha and her children, and Prances and her children, and some other matters, from plaintiff’s claims, in specie. It is, however, plainly unjust, that one should be barred by a determination in a case in which he was not practically represented. “Upon the general principles of Courts of Equity, there would be an impropriety in binding either the legal or the equitable claimants, unless they were fully represented and permitted to assert their rights before the Court; and if not bound, the decree would not be final on the matter litigated Story, Eq. PL Sec. 207,208. In all the proceedings in which the decrees in question were made, the trustee was pursuing his own interests, and yet his beneficiaries, having the equitable and ultimate interests to be affected, perhaps injuriously, by the decrees, were not made parties to the litigation. In all forensic contests between those sui juris and infants, the weaker parties are in peril of injury; but it is some safeguaed to infants to require that they shall always be before the Court when their rights are in question, and that they shall be represented by responsible next friends, who have no adversary interests to obstruct the proper presentment of the infants’ claims. I must treat these decrees as binding the trustee, at the-option of the beneficiaries, and not binding the beneficiaries.

As to Martha and her children, I have already said, that I do not find in the defendants’ exhibits that even an ex parte order of the Court was passed to confirm the purchase of these slaves by the trustee. He had leave to sell them, but that very authority inhibited his purchase of them. Where a trustee to sell purchases at his own sale, it is absolutely at the option of the parties interested, coming before the Court within a reasonable time, to have a re-sale, or to hold the trustee to his purchase. If they elect to have a re-sale, the course is to begin the biddings at the price offered by the trustee, and if more be bid, the property is re-sold; if not, the trustee is held to his purchase. Ex parte Wiggins, 1 Hill, Ch. 854. Such a purchase by a trustee is not absolutely unlawful, but is always *44made subject to tbe timely choice of the“'beneficiaries to set it aside. “ The only thing a trustee can do to protect his purchase is, if he sees that it is absolutely necessary the estate should be sold, and he is ready to give more than any one else, to file his bill and apply to this Court for leave to become the purchaser.” Campbell vs. Walker, 5 Yes. 681. In this ease the plaintiff is an infant, and while, of course, the application to the Court is timely, she is incapable of making the election to affirm or avoid the sale, and the duty of making the choice devolves on the Court. In the present state of information before the Court, this choice cannot be made intelligently; and it must be referred to the Commissioner, to ascertain which course is for the benefit of the infant. If he shall determine that it is for the benefit of the infant to retain her third part specifically in these slaves, (which are understood to be in possession of defendants,) he must further inquire and report as to a proper scheme of division of them by sale or otherwise, and also as to the hire to which the plaintiff is entitled. If he shall ascertain that it is for the benefit of the infant to affirm, the purchase by the trustee, the plaintiff will be entitled to her share of the hire before such purchase, and afterwards to her share of the purchase-money and interest.

It is urged for the plaintiff, in the prayer of her bill, and in the argument of her counsel, that the sale of the remaining trust slaves by the trustee to B. M. Pearson should be affirmed, and that she should be declared entitled to one-third of the purchase money, with interest at eight per cent. If this claim be equitable, it is so obviously for the interest of the plaintiff to charge the trustee with the proceeds of this sale, and to set aside the subsequent rescission, that I might safely now make the election for her, without the aid of the master. The defendants, however, say that both sale and rescission were made in good faith, and that it would be manifestly unjust to the trustee to set aside the latter only. This is the most important, and the most difficult question in the case. I have already *45adjudged that tbe order of this Court authorizing tbe rescission, was not an absolute estoppel to tbe plaintiff; but I am far from intending that tbe order of rescission, and tbe facts- accompanying it, should be overlooked. It is my duty to give all legitimate effect to tbe formal acts of tbe Court. It is quite proper to sanction now, when all tbe parties are represented, whatever tbe Court should have then authorized, and especially what tbe Court did then authorize upon sufficient evidence, but not in a form to bind all parties in interest. I have looked into the report [of tbe Commissioner, and tbe evidence on which the Court acted in granting this order, and I believe that if tbe plaintiff bad been a party to tbe proceedings, tbe same order would have been passed. It is true, that the evidence taken in a cause to which tbe plaintiff was not a party, cannot be formally used against her here ; and it is necessary to review tbe testimony on this point taken under tbe present proceeding. Two of the defendants’ witnesses on this point, examined by separate Commissions, were Bird M. Pearson and bis wife Isabella; and to them tbe plaintiff objected, before their depositions were read, on the ground of interest in tbe event of tbe suit; Tbe objection was taken in writing, in the ease of tbe latter, when tbe cross interrogatories were filed; but tbe cross interrogatories to B. M. Pearson were filed without reservation. At tbe bearing, I sustained tbe objection to Mrs. Pearson, but received suh modo tbe depositions of B. M. Pearson, principally upon a doubt whether the objection bad been taken in time. Tbe general rule, arising from tbe preliminary nature of tbe objection, is that it should be taken as soon as tbe party becomes aware of tbe existence of the interest; for be has tbe election to admit tbe testimony of an interested person against him, and cannot depart from his choice once made, upon becoming dissatisfied with tbe bearing of the testimony. Where tbe testimony is by deposition, tbe objection ought to be taken in limine, if tbe interest be known, as it was here. Still, it seems, tbe practice on this point admits of considerable latitude, *46in the discretion of the Judge. 1 Greenl. Ev., sec. 421, n. 1. Certainly B. M. Pearson has a disqualifying interest in this cause. Mayrant vs. Gruignard, 3 Strob. Eq., 119. And considering that the plaintiff is an infant, and that the objection was taken before the reading of the depositions, I sustain the objection. I do not believe that defendants sustain loss on account of the rejection of this testimony. There is, however, other testimony on this point. E. S. Lyon, a distinguished lawyer of Alabama, under the counsel of whom Edward Croft acted both in the sale and rescission, testifies generally to the faithfulness of the trustee, and, in substance, that the security taken from Pearson at the time of the sale, was regarded as adequate, but that, from the subsequent failure of the obligors in the bond, and the depreciation of the negroes mortgaged, the rescission was judicious. The declarations of Edward Croft, proved by the plaintiff’s witnesses, Caroline Sollee and Henry Sollee, have the same tendency and effect, yet with the unfavorable admission that the trustee had some view to securing Pearson’s private debt to him, in allowing such extended credit in the sale. There is not a tittle of proof that in the rescission itself, the trustee acted at all unfaithfully. There may have been some improvidence in the sale to one who, although in the possession of a large estate, and in good credit, certainly owed considerable debts. But the rescission, after the purchaser and his surety had become bankrupt, and creditors had seized one of the slaves of the trust, and were threatening all, was the course that a prudent man might have adopted.

If a trustee act faithfully, and with common diligence and sagacity, he is protected from liability for losses which may arise from his mistake of judgment. Sext vs. P archer, 1 Strob. Eq., 170. Knight vs. Plymouth, Dick., 120. Boggs vs. Adger, 4 Rich. Eq. 411. I am of opinion that the conduct of the trustee, in the matter of the rescission, is protected by this rule. The trustee here is to be regarded with some favor, as having himself created the trust estate, and having become *47trustee to save it from great loss. I add that, although the hill does alternatively pray that the rescission may be dis-affirmed, yet in the stating part and general frame, it recognizes the rescission.

While, however, I sanction the rescission, I must hold the estate of the trustee liable to account for reasonable hire of all the slaves, while in the possession of B. M. Pearson, or instead of hire, for interest on Pearson’s bond until the rescission. The witness of the defendants, E. S. Lyon, testifies, that Edward Croft, in settlement of sundry claims he held against Pearson, for money paid as his surety in South Carolina, and for negro hire, took from Pearson several negroes, which he subsequently conveyed in trust for the benefit of his daughter, Mrs. Pearson. These negroes were levied upon by Pearson’s creditors. On a trial of the right of property between Croft and Pearson’s creditors, the consideration proved by Croft, consisted of debts .paid by him for Pearson as surety, and certain notes of Pearson for negro hire, and certain notes of Pearson to R. and T. Gr. Croft, transferred to E. Croft. Of the notes for negro hire, was one of five hundred and eighty-three dollars, for balance of hire for 1840; one for one thousand three hundred and seventy-five dollars, for hire of 1841; one for one thousand dollars, for hire for 1842 ; and one of six hundred dollars, for hire of shoemaker for three years. It is the belief of the witness, that all of these notes for hire, except the last, were on account of the trust estate ; and, looking at the dates and sums, one can hardly doubt it. Richard Ward, witness of plaintiff, also testifies that in several conversations with Édward Croft, the latter said he had received twenty negroes from Pearson, afterwards settled on Mrs. Pearson, in satisfaction of the claims of the trust estate and himself on Pearson, and that he had received every dollar due to the trust estate, and all due to himself, except for some liabilities as surety, not paid or due. Of one of these conversations, on March 8, 1848, the witness made a written note. I am of opinion that this proof *48is adequate to fix tfie estate of the trustee with liability for hire or interest, subject, of course, to all proper charges.

The witness, F. S. Lyon, further testifies, that, in his opinion, the value of Jim, which he understood to be some three hundred dollars, might have been recovered from the sheriff, who sold him as Pearson’s property, but that E. Croft, acting on his advice, declined to bring suit, lest he might he prejudiced in his litigation with Pearson’s creditors concerning the twenty negroes sold to him individually by Pearson. I am of opinion that the estate of the trustee must account for the value and interest 'of this slave, as substantially received by E. Croft, or abandoned, in quieting and secui’ing his private interests.

The proof is very obscure, as to any other property belonging to the trust, besides the negroes, sold by the trustee or his agent, and the Commissioner must inquire and report as to this matter. As to the two slaves, Billy and Edwin, said to be sold by Sollee before E. Croft assumed the management of the trust, I see no ground in the evidence for liability of the estate of the latter.

The plaintiff, in her bill, strongly charges that the estate of the trustee should be made liable for the value of Chaney, who died in the transportation from Alabama to this State, alleging that this slave was removed prematurely after the birth of a child, against the advice of a physician, under circumstances of exposure, in very inclement weather. All the circumstances in this statement, inferring carelessness or inhumanity, are thoroughly disproved. This slave was not started for six weeks after her confinement, and then, with the approbation of a physician; she was carefully conveyed, in moderate weather, in a covered wagon; was rested on the road, and in every respect treated with care and kindness; and her child survived. This claim is extravagant, and apparently unkind.

The plaintiff objects to the claims of the trustee for his traveling expenses and fees to counsel, alleging that these were *49principally incurred about his own business. There 'is some foundation, in the evidence of F. S. Lyon, Caroline Sollee and Henry Sollee, for this allegation; but as this is a mere matter of detail, and as I do not undertake to audit the accounts, I leave it to the Commissioner, with the expression of my opinion, that the estate of the trustee should have credit for so much of these expenses as was incurred on account of the trust estate, and not for the expenses of E. Croft, about his private, business.

On the principles already declared, in relation to Martha and her children, the plaintiff is entitled to the option of taking, specifically, one-third of Frances and her issue, and hire proportionally; or taking one-third of six hundred and fifty dollars, and of the interest accrued since the purchase of these slaves by the trustee. The Commissioner must ascertain which is more for her benefit, and if the former alternative be adopted, must report a plan of partition, specifically or by sale.

I do not understand the bill to make complaint, that the slaves assigned to the plaintiff were not equal to one-third of the whole value of all those which were divided, by the trustee, among the three children in 1845. It would be impracticable now, at least in this proceeding, to have a new actual partition of the slaves; for Edward is no party, and he has removed, with his share, from the State, and some of the slaves of Frederick have been sold. If the plaintiff, however, is advised that her share was not equal, at the time of division, to one-third of all then divided, she may offer proof of the fact before the Commissioner, and obtain pecuniary recompense for such deficiency. The burden of the grievance set forth by the plaintiff in relation to the slaves assigned to her, is, that the trustee himself purchased them at inadequate price. Having already determined that she is not bound by an order obtained on the ex parte petition of the trustee, and that a purchase by a trustee of the trust estate, without the regular authority of *50the Court, is voidable at the option of the beneficiary, my conclusion follows, that this purchase must be set aside, if the advantage of the plaintiff so require. Let the Commissioner inquire and report whether it is for the benefit of the plaintiff to take these slaves, with their increase and hire, or one thousand nine hundred and seventy-five dollars, with interest from the time of purchase. There is little doubt as to the proper election in this instance, but it is safer to have the report of the master before making a decree for the specific delivery of the slaves to the plaintiff’s guardian.

In the returns of the trustee to the Commissioner, all the expenditures for the trust estate, whether in the lifetime of Mrs. Sollee, or after her death, are thrown into one common mass, and divided equally among the children. It is proper that the charges on the trust estate during Mrs. Sollee’s life be defrayed from the profits for that term, and then that the third part of each child in the estate, including an equal share of any remnant of profits of the life estate, separately sustain the expenses of such child, and of his share of the estate. So, also, as to the profits.

All fair charges in behalf of the trustee, should be liberally allowed. I shall not pursue further the details of this long case. The accounting on the principles of this opinion will probably be unexpectedly onerous to the defendants; but it is my duty to uphold what I suppose to be the doctrine of the Court.

It'is ordered and decreed that the plea of the statute of limitations be sustained, as to Frederick W. Sollee, and that the bill as to him be dismissed, without costs.

It is ordered and decreed that the Commissioner of this Court state the accounts between Lydia G. Sollee and the defendants, on the principles of this opinion ; and that he make the inquiries herein directed.

*51The defendants appealed on the grounds:

1. Because the actings and doings of Edward Croft, the trustee, were done in obedience to the orders and sanction of the Court of Chancery, after full reports by the Commissioner, and should not now be disturbed, after the death of the trustee.

2. Because it is -manifestly unjust, and against equity, to make the estate of the trustee liable for the increased value of the slaves, when it was, at the time of sale, to the interests of the trust property, that they should be sold, and a sale was absolutely necessary to defray the expenses incurred by the trustee, in recovering and saving the property.

3. Because the trustee should not be made liable for the value of the boy Jim, there being no one whom he could find to sue for the said boy. He was sold as Col. Pearson’s property, and immediately run out of the country. Col. Pearson had, at the time, a legal interest in the boy, and the sheriff was no trespasser, in levying on and selling him as Pearson’s property, although he stood mortgaged to the trustee.

4. Because the trustee ought not to be made responsible for interest or hire of the slaves in the possession of Col. Pearson, beyond the extent of what he received when the slaves were taken back by sanction of the Court.

5. The sale of the slaves., Martha and her children, was made by order of the Court,, to pay the debts of the trust estate, and at fair prices, and should not now be rescinded, because the negroes have increased in value.

6.Because the sale of Frances and her children, having been made by Col. Pearson to the trustee at the time he was the *52owner of the property, and the trustee having accounted for the same, should not now be disturbed.

7. Because the corpus of the estate should be liable for all the expenses in rescuing and saving the same by the trustee, and not simply the hire and proceeds of the property, till the death of Mrs. Sollee.

8. The testimony of Col. Pearson having been taken without objection, should not have been excluded by the Chancellor.

9. The taking of the negroes assigned Lydia, by the trustee, by order of the Court, and at fair and full prices, should not now be rescinded, because the negroes have increased in value.

10. The purchase, of administrators and executors, at their own sale, for a full price, has been legalized by act of the Legislature, and, consequently, the purchase of property by a trustee, under'the sanction of the Court of Equity, ought not to be.disturbed, when it was made fairly, and for a full consideration.

11. The parties now all being before the Court, the Court should be disposed to decree what would have been right and proper to have decreed at the time the ex parte orders were obtained by the trustee for the interest of the trust fund.

12. Because the decree is, in other repects, contrary to law and equity.

The complainant, P. W. Sollee, also appealed on the grounds:

1. Because it is respectfully submitted, that the said E. W. *53Sollee was not barred by the statute of limitations, and that his claim to an account from the defendants ought to have been sustained by the Court.

2. Because the decree dismissing the bill as to F. W. Sollee’s claim, is contrary to the equity and justice of the case.

Perry, Young and Elford, for defendants.

Sullivan, for complainants.