#### *Exparte A. M.*Robert, *N*Cruger, *E. A. Cruger, and Edward Riley.*

Charleston,

April, 1848.,

The Court will not substitute a trustee resident in a foreign jurisdiction, without security for the faithful discharge of his duties: and the sureties must beper-sons amenable to the jurisdiction of the Court.

*Before*DargaN, Ch. *at Charleston,*1847.

Petition states that John Robert, by his will, bearing date 21st December, 1833, among other things devised as follows : “ All the rest and residue of my estate, not otherwise disposed of by this instrument, it is my will and desire shall be equally divided between my two sons Lucius C. Robert and John H. Robert, and my three daughters, Cornelia E. Riley, Sarah Isabella A. Robert and Elizabeth A. Robert, under such limitation as will be hereafter limited and declared. The property, both real and personal, to which my daughters Cornelia E. Riley, Sarah Isabella A. Robert, and Elizabeth A. Robert, may be severally entitled under this instrument, I give to my executor and executrix hereinafter named, in trust for the sole and separate use of my said daughters severally, during life, and at the death of either of them, then the portion of such child to descend to such child or children as she may leave alive at the time of her death, under such limitations as will be hereafter expressed as above mentioned. But if either of them should die without leaving child or children, at the time of her death, then her proportion shall revert to my estate, and be equally divided among my children, under such limitations as will be hereafter expressed and declared as above mentioned.”

That testator, not long after the date of his said will, departed this life, and Mrs. Robert, party to this petition, with William H. Robert, proved the will and paid all the debts. That Sarah Isabella Ann Robert died unmarried, intestate, and without issue, and her proportion was divided as directed by the *87will. That all the testator’s other children attained the age of twenty-one years, and received their several specific and residuary legacies. That Elizabeth Anne, party to this petition, was married with Nicholas Cruger, (party,) and the said Anne M. Robert has in possession 54 negroes, which have been assigned to Elizabeth Anne as her share of the residuary legacy of her father, and of the portion of Sarah Isabella, also money arising from the income of the property, and a plantation purchased in her name. And that all the estate of Elizabeth Anne, before her marriage with Nicholas Cru-ger, was conveyed in trust for the uses of the said marriage; but the said settlement is without a trustee, inasmuch as none has accepted the said trust.

Petitioners, Cruger and wife, are desirous of having her fortune removed to Georgia, and the purchase money of her land, and the money in the hands of the executrix, laid out in the purchase of a plantation in Georgia, called Greenwood, in Baker county, to be conveyed in trust for the uses of the marriage' settlement. Pray that Mrs. Robert may be removed and Edward Riley appointed in her place, trustee under the will, and also trustee'under the marriage settlement.

The report of James W. Gray, one of the Masters of the Court of Chancery for Charleston District.

By an order of this Honorable Court, it was referred to me to ascertain whether Dr. Edward Riley is a proper person to be appointed a trustee under the will of John H. Robert, and under the marriage settlement of Mr. and Mrs. Cruger, in place of Mrs. Ann Maner Robert, the surviving executrix of the said will, and of Reverend Peyton L. Wade, who has not accepted the trust of the marriage settlement, and whether it is expedient to permit the fortune of Mrs. Cruger to be transferred to the State of Georgia, and her money invested in the purchase of Greenwood plantation.

I have examined witnesses to the point, and find that Dr. Riley is a substantial planter residing in Glynn county, and a person very fit to be entrusted with the care of Mrs. Cru-ger’s fortune. That Mr. Cruger is a resident of Apalachicola, and that his marriage was with the consent of the family, and that the removal of Mrs. Cruger and her fortune was necessarily connected in the minds of the parties with the marriage, as an incident to the proposed union. That the purchase of Greenwood plantation, in Baker county, in the State of Georgia, is beneficial to the trust estate, if it can be accomplished; and that the proposed trustee is the proper person to ascertain and be answerable for the title, and that the trusts of the will and the settlement be protected by the laws of Georgia ; and that the prayer of the petitioner ought to be granted. James W. Gray, Master in Equity.

1.3th. December, 1847.

*88His Honor Chancellor Dargan refused to substitute Dr. Riley as trustee, and the petitioners appealed, and renewed their application in the Court of Appeals.

Petigru and Lesesne, Solicitors.

Donkin, Ch.

delivered the opinion of the Court.

The petition sets forth, among other things, that the petitioner, Ann Maner Robert, the executrix of John H. Robert, deceased, has in possession about fifty-four negroes which have been heretofore assigned to her co-petitioner, Elizabeth Ann, as her share of the residuary legacy of the testator, and of the portion of her deceased sister, Sarah Isabella, and that she has also money arising from the income of her property, and a plantation purchased for her, and in her name, out of the said income.

The order proposed, and which the Chancellor declined to grant, was that Dr. Edward Riley, a citizen of Glynn County, in the State of Georgia, should be admitted a trustee under the will of John H. Robert, for the petitioner, Elizabeth Ann, and that Mrs. Ann Maner Robert transfer the property in her hands, as trustee under the will, to the'said Edward Riley, and be discharged.

The decretal order does not state the grounds on Avhich the Chancellor declined to execute the authority vested in the Court, by the Act of 1795, but they may be well understood from the written argument, submitted by the Solicitors, on behalf of the petitioners.

The only inquiry for this Court, is whether, under the circumstances of the case, the discretion of the Chancellor was properly exercised in refusing the motion.

The argument affirms that Dr. Riley being a gentleman of high respectability, it was the duty of the Court to have made the substitution, although he was resident in a foreign jurisdiction, and without requiring security for the faithful discharge of his duties.

The case of *Meinertzhaegon*v. Davis, recently decided by Mr. Vice Chancellor Knight Bruce, (a report of which was furnished by the Counsel,) shows very clearly the general understanding and practice, in Westminster Hall, on this subject. It is not too much to say that the general correctness of Mr. Lee’s position was not questioned, to wit: that “ nothing could be more contrary to the principles of the Court of Chancery, in England, than the appointment of Americans, or any other foreigners, to execute and be responsible for the execution of the trusts of an English settlement.” In that case the settlement was executed in England, but the trustees, by the terms of the deed, had'authority to substitute other trustees in their place, and they had also authority to invest the lands in American securities. The husband was a citizen of *89Virginia, temporarily a resident in London. He, with his family, afterwards returned to Virginia, and the original trustees, under the power vested in them by the deed, substituted three Virginia gentlemen iu their place, transferred the funds to one of them then in London, and the funds were after-wards invested in securities, in America, in the name of the three substituted trustrees. So stringent is the English rule on the subject, that eminent counsel advised that the original trustees were responsible, because they had substituted foreigners in their place, and Mr. Knight Bruce remarks, *“*it is impossible to say that doubts and difficulties on the subject, might not reasonably have suggested themselves to any counsel, or to any adviser.” The original trustees, in England, had been advised to demand an indemnity from the husband. “This difficulty was suggested,” says the Vice Chancellor — “the question whether the power of appointing new trustees had been properly exercised — a difficulty, at which, I repeat, I do not at all wonder, presenting itself to the minds of the advisers of the trustees, and that circumstance produced this paper” of indemnity. After commenting on the special clauses of the settlement, and particularly the authority to invest in American securities, and the condition of the parties, the Vice Chancellor adopted the conclusion that *“*whatever might be the general rule, the course pursued was, under the circumstances, proper and justifiable.”

yes. Jr. 243. ,

iumkiá. °~

It is difficult to say that the motion to reverse the order of the Circuit Court derives support from this opinion of Vice Chancellor Knight Bruce. But it is valuable as presenting a more full and satisfactory discussion of the subject, in 'Westminster Hall, than is found in other decided cases. But a single expression of Lord Thurlow, in the *Attorney*Gen*eral*v. *The City of*London, indicates the gieat objection to the appointment of a foreign trustee. It is said he was moved by the consideration that, if the Court were to look to the execution of the trust, it ought to have persons bound to discharge those trusts liable to its jurisdiction. In that case it was proposed to appoint, or rather to continue, a foreign corporation as trustees.

It was successfully objected that William and Mary College, in Virginia, which had hitherto disbursed the trust funds, was, by the establishment of American Independence, emancipated from the control of the Court of Chancery in England.

Although Mr. Mansfield and Mr. Mitford represented that the *“*application of the money could be managed as well now as before, by accounts properly transmitted to the officer of the Court.” But, said the Lord Chancellor, “ where is the *scire facias*in case of misbehaviour?”

*Exparte Mayrant*is an authority of the Appeal Court for *90saying that a trustee, appointed or substituted by the Court under the Act of 1795, and receiving funds, is bound to account to this Court.

It is true that the condition of our country has rendered it both expedient and necessary to introduce some modification in the administrative practice of the Court, while the proximity of so many independent States, the facility of intercourse, as well as the migratory disposition of their inhabitants, demand some relaxation of the rules; it is rendered less objectionable in consequence of the identity of language, and homogeneous character of the laws and institutions of the several States. An administrator is sometimes appointed, who is resident m North Carolina or Georgia, although the domicil of the intestate and all the assets maybe within the jurisdiction of the Courts of South Carolina — so, I suppose, under special circumstances, a guardian may be appointed who is a non-resident; but in all such cases, the Court of Ordinary, or the Court of Equity, as the case may be, requires security to be given that the foreign administrator, or guardian, will discharge his duty faithfully, and the sureties must be persons amenable to the jurisdiction of the Court.

The refusal of the Chancellor' to substitute a trustee resident in Georgia, without security, presents no ground for the revision of his judgment; should it be deemed desirable to have an order for the appointment of the trustee, on giving security for the faithful discharge of his duties, parties may take a reference to one of the Masters, for the purpose of ascertaining the value of the property, and the amount of the bond to be taken by the Master.

The whole Court concurred.

*Appeal dismissed.*