#### John N. Maffitt *vs.*John H. Read.

*Evidence*— Settlement—Account.

Bill by a *cestuy qua trust*against trustee, for account, dismissed, certain dealings between the parties being *held*sufficient evidence of a final settlement between them.

BEFORE DUNKIN, OH., AT CHARLESTON, JUNE, 1859.-'

Ddnkin, Ch. About 12th May, 1842, the late James Withers Read intermarried with Caroline Laurens, who was at that time about eighteen or nineteen years of age. In contemplation of the marriage, the fortune of the lady, consisting . chiefly, though not entirely, of personalty, was conveyed and transferred to Edward R. Laurens and the defendant, in trust for the uses therein and thereby declared. The estate thus settled, was composed of a moiety of some eight slaves, and certain articles of plate, held by her brother and herself, and which constitute no part of the enquiry to be made; and also of her moiety of certain bonds and stocks, of a lot in Hasel street, and her interest (being a sixteenth) in certain marsh lands. Her moiety of the stock and bonds (as afterwards ascertained on partition) amounted to ($41,079 66) forty-one thousand and seventy-nine 66-100 dollars, and her interest in the realty was afterwards sold for ($2,962 50) two thousand nine hundred and sixty-two 50-100 dollars, or in the aggregate forty-four thousand and forty-two dollars sixteen cents ($44,042 16.) The uses declared were, among others, for the joint use of husband and wife, during coverture, and in the event of the survivorship of the wife, with or without issue, then to her absolutely, discharged of all other and further trusts. It was also provided, that in *286the event that the said Caroline Laurens and James W. Read should, at any time during their joint lives, &c., think it beneficial to their interest to have the estate, or any part thereof, sold, disposed of, invested in, or exchanged for other property, real or personal, and the purchase money invested in any other property whatsoever, or placed at interest, that then the said trustees, on being thereunto requested in writing by the said Caroline and James, shall dispose of, convey, invest or exchange the same, or any part thereof, as the case may be, without any right of refusal on the part of such trustees, and invest the purchase money in such other property, real or personal, or invest or place it at interest, as may be required by them, the said Caroline and James, &c., and such purchased property or invested funds, &c., shall stand subject to the same uses, &c.

For about four years after the marriage, and until 5th March, 1846', the corpus of the estate remained substantially in the same condition, the interest, dividends, or use being enjoyed by the parties according to the terms of the settlement. On the day last-mentioned, the trustees, at the instance and by the request of the cestuy que trust, purchased one moiety of the Rice Hope plantation on Cooper river, and of the slaves thereon, for the sum of forty-one thousand seven hundred and sixty 37-100 dollars ($41,760 37,) to wit: $20,000 for the plantation, and $21,760 37 for the slaves, and to secure the payment of the same, the trustees executed their bond to the vendor, J. Harleston Read, the elder. Subsequently, the trustees added to the gang two negroes, purchased for thirteen hundred and sixteen dollars, making the agricultural investment forty-three thousand and seventy-six 37-100 dollars ($43,076 37).

James Withers Read and his wife entered into possession of the premises, and continued in the use and enjoyment of the same until the death of the former, which took place 28th June, 1851. In fulfilment of the terms of the marriage settlement, in such contingency declared, the trustees, on the *28712th August, 1851, conveyed and transferred to Mrs. Read the moiety of Rice Hope plantation and the slaves, which had been purchased for the trust estate. On 1st January, 1852, Mrs. Read conveyed her moiety of the plantation to J. Harleston Read, Sr., for the sum of twenty-thousand dollars, and executed to him a bill of sale for her moiety of the slaves for the consideration of twenty-four thousand dollars— making an aggregate of forty-four thousand dollars ($44,000). But in adjusting the payment with J. Harleston Read, Sr., the balance due on the bond of the trustees for the original purchase money (being upwards of seven thousand dollars) was deducted and allowed. Early in August, 1852, the plaintiff intermarried with the widow of James Withers Read, deceased. These proceedings were instituted, on behalf of the plaintiff and his wife, on 8th May, 1854.

The scope and object of the bill is not to charge the trustees, or either of them, for any sums by them, or either of them, actually received and misapplied, but to render them responsible for permitting the late James Withers Read to receive certain funds belonging to the trust estate, which were either wasted by him, or not properly re-invested, or in any other manner applied to the purposes of the trust. After the answers had been filed, an order of reference was taken, without prejudice to the defence set up by the defendant,and the bill was dismissed as to the defendant E. R. Laurens, by consent of plaintiff and the codefendant, J. H. Read, and without prejudice to the plaintiff’s right of account otherwise. The report of the master had been filed, when, in March, 1859, the wife of the plaintiff departed this life, and on 14th May, 1859, the proceedings were revived by the plaintiff in his own right, and as administrator of his deceased wife.

Preliminary to the consideration of the exceptions to the master’s report, it may be well to notice the answer of the defendant, John Harleston Read, as the order of reference was made subject to the defence therein disclosed. This defend*288ant does not shrink from the responsibility which, according to the principles of this Court, he incurred in becoming a party to the marriage settlement. For the consequences of any misplaced confidence in his deceased brother, he admits his liability, but the defendant contends, that by far the greater part of the trust fund received by the said James W. Read, and to which he may not have been entitled as the usufruct of the estate, was re-invested by him with the full knowledge and consent of his wife, for the use and as part of the trust estate; that such investments were not only with her approbation at the time, but received her further and confirmed sanction when she afterwards became his widow, and entitled absolutely to the estate. The defendant admits that a portion of the fund received by the said James W. Read was not thus re-invested; but that about two months before the death of the said James W. Read, an adjustment was made of this deficiency, ascertained in the presence of his wife and of his solicitor; that for this amount the said James W. Read, then and there, confessed a judgment to his said trustees (who were not aware of the transaction until some time afterwards). That more than twelve months after the death of the said James W. Read, to wit: on 15th July, 1852, the defendant, who had become administrator of his deceased brother, settled the said judgment, then amounting to about ($2,200) two thousand two hundred dollars, by executing to her his own individual bond for the payment of the same; and that the said bond was subsequently paid in full to the plaintiff, John N. Maffitt, after his intermarriage with the widow of the said James W. Read, deceased ; that all this took place some time prior to the institution of these proceedings, and the defendant insists on the same as a final settlement of any defalcation of the said James W. Read, in relation to the trust estate.

In order to appreciate a part of this defence, it is necessary to advert to some of the provisions of the settlement. It is therein declared to be the duty of the trustees, upon the re*289quest, in writing, of the cestuis que trust, to dispose, &c., of any part of the trust estate, and re-invest in such other property as may be required of them, *“*without any right of refusal on the part of the said trustees.” It will be perceived that the right of control and direction, as to the mode and manner of investment, was in the cestuis que trust absolute and unlimited. It was only necessary that the request or requisition of these latter should be distinctly signified. It was probably for the protection of the trustees, or of a purchaser, that it was required to be in writing. Their assent or desire might be otherwise established, as by their acceptance and use of the property taken in exchange or as a re-investment. This is illustrated by the purchase of Rice Hope and the slaves, in March, 1846, and the sales of stocks, &c., to meet the payments. No.evidence appears of any request in writing, on the part of the cestuis que trust, but they took possession of the estate and enjoyed the same in common, during the coverture. After the death of James W. Read,, the plantation and slaves were, in pursuance of the provisions of the settlement, on 12th August, 1S51, conveyed by the trustees to the survivor, Mrs. Read, by whom they were subsequently (1st January, 1852) conveyed to another purchaser for valuable consideration. After this, it would not have been competent for Mrs. Read, or her representative, to have impugned the investment in Rice Hope, for the want of, evidence of a written request on the part of her deceased; husband and herself, nor is the same, in any manner, now-called in question or impugned. So, in regard to the sale of the marsh lots, and also of the investment in the Morris island lot, there is no evidence of any written request on the part of James W. Read and wife, but the master has concluded from the circumstances detailed in his report, that these transactions were at the instance and by request of the parties, or received their subsequent sanction ; and he has-accordingly sustained the same, without objection to his judgment. It would scarcely be competent for the cestuis.que *290trust, accepting the property purchased as a re-in *vestment,*afterwards to repudiate it as such, as between themselves and the trustees, because there was no evidence of a written request.

Nor can it any more be properly objected to a re-investment, that it was not of a character which this Court would have selected, or which a prudent trustee ought to have sanctioned. The terms of the marriage settlement expressly defined the authority of the trustees in this respect. They were required to pursue implicitly the requisitions of the cestuis que trust, who were thereby constituted the sole judges of the expediency, as well as the mode of re-investment, “ without any right of refusal, on the part of the trustees.”

During the five years which elapsed between the purchase of Rice Hope, and the death of James W. Read, in June, 1851, agricultural investments on Cooper river proved entirely unprofitable. For four, out of the five years, there was a failure of crops, in consequence of the condition of the river. Within this period, James W. Read had put valuable improvements bn the trust estate, and he had also improved and furnished the house on Morris island, which was their summer residence. For none of these have any allowance been made, and for the reasons stated in the master’s report, upon which it is not proposed, at this time, to make further observation. In his answer, the defendant' states that his intestate, James W. Read, died insolvent, and, at the hearing, records of unsatisfied judgments .to a large amount,.existing against him at the time of his death, were adduced .in- evidence, .

Upon the death of her husband, Mrs. Read, as survivor, became entitled absolutely (as already staled) to the whole of the trust estate, consisting as well of the original investment as of any re-investments. In this way she took and conveyed to a subsequent purchaser, the moiety of Rice Hope and the slaves for forty-four thousand dollars; and to the same purchaser, she conveyed for valuable consideration her moiety of the stock, plantation, horses, &c. In addition to *291these, Mrs. Read, (as proved by the testimony of N. H. Guyton, for many years manager on,the place,) claimed and took possession of many other valuable articles of property. A large portion of these she subsequently sold or otherwise disposed of. A paper was produced (marked D) which the witness proved to be in the handwriting of Mrs. Read. This purports to be a list of stock, tools, &c., on Rice Hope, and at the latter part, the names of various horses are given, with this caption: “Horses bought by J. Withers Read for the use of his wife and self.” . All the horses thus designated were taken and disposed of by Mrs. Read. There was also the slave Clarinda; she had been purchased by James W. Read for three hundred and ten dollars; she was a cook, and not a field negro. When Mrs. Read came to town, after the death of her husband, she brought Clarinda with her, and hired her out, as a cook, in Charleston, where she died the early part of the following year. It was satisfactorily established, that for the various articles of property thus taken by Mrs. Read, her husband, James W. Read, had paid upwards of three thousand dollars. In addition to this, she had also a promissory note of James Smith Colburn to James W. Read, for five hundred dollars, which was subsequently collected by the plaintiff in this cause. It further appeared that on 19th April, 1851, about two months prior to the death of James W. Read, he, of his own accord, confessed a judgment to his trustees for the sum of two thousand and twenty-nine 63-100 dollars ($2,029 63). In the defendant’s answer it is stated, (and as the Court understood, was so conceded,) that “this confession of judgment was executed in the country before his (J. W. Read’s) own solicitor, and in the presence of his wife, and with her full knowledge.” Further, it is stated that “this confession was arranged by the said James W. Read and his wife, the said Caroline,” &c. Taking into computation the original price paid by James W. Read for the articles of property above referred to, and thus claimed and received by Mrs. Read after his death, the amount for which *292the judgment was thus confessed rather exceeds the balance of the trust funds, for which the master regarded the said James W. Read as at that time chargeable. The intestate, in his actual situation, had no conceivable motive to diminish the amount for which he was about to give a security to his trust estate. The various articles of property in which reinvestment had been made were before him. It must have been as well known both to his wife and himself, to which of them the trust character attached, and the deficiency of the trust fund, for which he was, therefore, accountable. In confirmation of this view, Mrs. Read, after the death of her husband, (as the master reports,) rented out the Morris island property, and subsequently conveyed the same to a purchaser, from whom she received the proceeds. She also held possession of Clarinda, whom she carried with her to Charleston, and there hired her out; and this slave afterwards died while in her employment, or under her control. Several other of these articles she afterwards sold or disposed of, and among them, of the carriage, horses, &c., which she had designated, in the list given to the manager, as having been purchased ‘‘by J. Withers Read for the use of his wife and self.” Furthermore, the present plaintiff in her right, demanded payment of the promissory note given by James Smith Colburn, and subsequently received satisfaction of the same from him. Unless Mrs. Read, as the survivor, had been entitled, under the terms of the settlement, to these several articles of property, she had no authority to receive, dispose of, or appropriate the same, nor had the legal representative of the intestate’s estate any excuse for permitting it to be done.

But, on the death of her husband, Mrs. Read had the right to demand of the trustees an account of any portion of the corpus of the trust estate, which her. husband had been permitted to receive, and which he had failed properly to re-invest or appropriate; and the trustees had a correspondent right to account from the estate of the intestate. With a full knowledge of this, and knowing, too, the circumstances under *293which the confession of judgment was given, and the purposes for which it was given, Mrs. Read, more than twelve months after the decease of her husband, to wit: on 15th July, 1852, received from the defendant, J. Harleston Read, his own bond for the full amount of the said judgment and interest. The caption of the receipt run as follows: “Mrs. James Withers Read, in account with J. Harleston Read, Jr., trustee;” and after charging the amount of the judgment and interest, and crediting an account paid or allowed to the solicitor, “ Received, Charleston, July 15th, 1852, from J. Harleston Read, one hundred and eleven 25-100 dollars, in full for balance of interest of the above-mentioned judgment, also his for $2,029 63, in full of the principal of the same, as per statement above.” Signed, “ Caroline L. Read.” The defendant, in his answer, says that “at the time of giving his bond, this defendant was under the most certain conviction that he was making a full and entire settlement of his trust with the complainant, and nothing was intimated on her part, that she either expected or demanded any further account, or that she had any other claim against the said James W. Read and this defendant; and defendant then believed that she considered as he did — that the settlement was final and conclusive, well understood and apprehended by her, and entirely acquiesced in on her part. Nor did defendant ever hear of any dissatisfaction on her part until after her intermarriage, &c., and then not until the lapse of some time after the marriage,” &c.

The bond thus given by the defendant to Mrs. Read in July, 1852, was payable in one and two years, with interest from the date. On 20th July, 1S53, the plaintiff, who had in the meantime intermarried with Mrs. Read, received from the defendant the annual interest on the bond, and on 30th September of the same year, he received full payment of the bond, which was thereupon delivered up to be can-celled. On 21st June, of the same year, the plaintiff had also received payment from James Smith Colburn of the *294note, which had been given by him to the intestate, James W. Read. Until nearly two years after the arrangement of July, 1852, aud nearly eight months after the final payment of the bond, no proceedings were instituted against the defendant.

It is not suggested that in the meantime any discoveries had been made, or any new light shed upon the condition of the parties.

Upon a full review of the transactions of the several parties, the Court is of opinion, that the plaintiff’s bill should be dismissed, and it is so ordered and decreed.

The complainant appealed on the grounds:

1. Because there was no sufficient evidence of any final settlement between the complainant’s intestate and the defendant.

2. Because, even if the dealings of the parties were intended as a final settlement between the trustee and her *cestuy que*trust, it is respectfully submitted that this would not have barred an account, or entitled the defendant to have the bill dismissed, unless, 1st, It had been consummated by a release, under seal; or, 2d, There had been such a lapse of time as

•would authorize the application of the statute of limitations; or, 3d, The settlement had so changed the condition of things, as to render it inequitable to subject the defendant afterwards to an account.

3. Because, upon the examination of the report and testimony, it does not appear that the purchases and expenditures referred to in the circuit decree, to support the settlement, were made on behalf of the trust estate, but were in fact purchases made by James Read personally, and constituted no portion of the trust estate.

*Mitchell,*for appellant.

*Simons,*contra.

*295*Per Curiam.*

We concur fully in the excellent decree of Chancellor Dunkin, and, for the reasons therein given, it is affirmed.

O’Neall, C. J., and Johnston and Wardlaw, J J., concurring.

*Decree affirmed.*