#### JOSEPH B. CHESHIRE, JR., Trustee Under the Will of LAURA F. COSBY, v. FIRST PRESBYTERIAN CHURCH OF RALEIGH; PRESBYTERIAN ORPHANS’ HOME, AND EDWIN S. HARTSHORN, Administrator of B. H. COSBY.

(Filed 2 May, 1945.)

1. Estoppel § 6d—

In a suit by a successor trustee under a will, after tbe death of the life beneficiary, against the administrator of the life beneficiary and the ultimate beneficiaries, the said administrator attacking by cross action the authority of the former trustees, the accounts and the general handling of the trust by plaintiff and his predecessor trustees, plaintiff having-pleaded estoppel against such administrator as to any claim against the former trustees and there being evidence tending to show that testatrix died in 1919 and her executo-r settled her estate in 1920 and acted as trustee to his déath in 192S when, in a proceeding for that purpose, the second trustee was appointed and on his death in 1932 the plaintiff was appointed in another proceeding, the life beneficiary being a party to both proceedings, and that regular accounts were filed by the executor and all three trustees and approved, all without any objection or question from the life beneficiary, who was under no disability from 1919 to his death in 1940, such conduct of the life beneficiary constitutes an estoppel against his administrator and the findings of fact and conclusions of law by the court below on the plea of estoppel must be upheld.

*1662. Reference § 13: Trial § 39—

A party, who would preserve his right to a jury trial in a compulsory reference, must object to the order of reference at the time it is made, and on the coming in of the report of the referee, if it be adverse, he should seasonably file exceptions to particular findings of fact made by the referee, tender appropriate issues based on the facts pointed out in the exceptions and raised by the pleadings, and demand a jury trial on each of the issues thus tendered.

3. Trial § 38: Reference § 13: Appeal and Error § 49a—

In a compulsory reference, objected to and jury trial demanded, on the coming in of the referee’s report, issues tendered by the objecting party, which have already been answered as matters of law by this Court on a former appeal in the same case, are not appropriate issues, the opinion on the former appeal being conclusive.

4. Appeal and Error § 49a—

A ruling of the court below in accordance with a decision of this Court on a previous appeal in the same case, based upon the same facts, must be upheld, as such decision is the law of the case.

5. Trial §§ 38, 39: Reference § 13—

Where pleadings allege conclusions of the pleader and present questions of law, but do not raise issues of fact for the jury, and the issues tendered are not pointed out in the exceptions and raised by the pleadings, they are not such issues as give the party tendering them the right to a trial by jury.

6. Reference § 12—

In a hearing on exceptions filed by appellant to the report of a referee, on a compulsory reference, no proper issues pointed out in exceptions and raised by the pleadings being tendered, where the court below denied a jury trial and considered the exceptions, reviewed the evidence before the referee, gave its opinion and conclusion, both upon the facts and the law, and entered judgment accordingly, which resulted in a modification and confirmation of the referee’s report, the judgment of the court below will be upheld.

7. Fiduciaries § 2: Trusts § 12—

In administering a trust fund under a will, which directed that the estate be reduced to cash and the money be invested in interest bearing securities, there is no liability on the part of the trustee for loss on loans, in the absence of evidence tending to show that they were inadequately secured at the time they were made, and there being no evidence that the investments were not made in good faith or that the trustee failed to exercise due diligence in his efforts to collect same.

Appeae by defendant, Edwin S. Hartshorn, Administrator of B. H. Cosby, from *Grady, Emergency Judge,*at October Term, 1944, of Wake.

This ease has been here three times prior to the present hearing. First at the Fall Term, 1941, reported in 220 N. C., 392; then at the Spring *167Term, 1942, reported in 221 N. 0., 205, and again at tbe Fall Term, 1942, reported in 222 N. 0., 280.

Since tbe last appeal, a bearing before a referee bas been beld, report of tbe referee filed, exceptions filed thereto, issues tendered and a jury-trial demanded by tbe appellant.

His Honor beard tbis cause upon tbe exceptions filed by tbe defendant, administrator, and beld tbat tbb right to a trial by jury bad not been preserved; modified and affirmed tbe report of tbe referee and entered judgment accordingly.

Tbe defendant, administrator, appeals, assigning error.

*Paul F. Smith for plaintiff.*

*J ames I. Mason for defendant.*

Denny, J.

Substantially all tbe facts pertinent to tbis appeal are to be found in tbe former opinions of tbis Court referred to above. However, we deem it proper to give a resume of them.

Laura E. Cosby died in 1919, leaving a last will and testament. She directed her executor, W. N. Jones, to pay her debts and convert her remaining property into money and bold and invest tbe same in interest-bearing securities, and to pay tbe income therefrom to her brother, B. H. Cosby, for bis natural life. After tbe death of B. H. Cosby, tbe *corpus*of tbe fund was directed to be paid to Barium Springs Orphanage and tbe First Presbyterian Church of Raleigh, for certain charitable purposes. W. N. Jones qualified as executor, collected tbe assets, paid tbe debts of tbe estate and filed bis final account as executor in 1920. Thereafter be bandied tbe assets of tbe estate as Trustee until bis death in 1928. In a special proceedings, instituted by tbe executrix of W. N. Jones, in Wake County, William Bailey Jones was appointed Trustee under tbe will -of Laura E. Cosby, to succeed W. N. Jones. In 1932, William Bailey Jones died and another special proceedings was instituted before tbe Clerk of tbe Superior Court of Wake County, and Joseph B. Cheshire, Jr., was appointed Trustee under tbe will of Laura E. Cosby, 18 February, 1933, to succeed William Bailey Jones. B. H. Cosby, tbe life beneficiary under tbe will of Laura E. Cosby, was a party to both special proceedings referred to above, and during bis lifetime never questioned tbe validity of tbe appointment of tbe respective Trustees or tbe correctness of their accounts.

Plaintiff acted as Trustee under tbe will of Laura E. Cosby, pursuant to tbe above appointment, which appointment was validated by an order of Carr, J., entered at tbe June Term, 1942, of tbe Superior Court of Wake County, and affirmed by tbis Court at tbe Fall Term, 1942, reported in 222 N. C., 280, 22 S. E. (2d), 566.

*168Tbe present Trustee received, in February, 1933, all tbe assets of tbe trust fund, as shown in tbe final account filed in tbe office of tbe Clerk of tbe Superior Court of Wake County, 20 January, 1933, for and on bebalf of William Bailey Jones, Trustee, after bis death. And when tbe plaintiff filed bis first annual report, be listed and gave a description of each security received by him from tbe personal representative of tbe former Trustee. In this report, tbe plaifitiff stated tbe securities were of uncertain value and recommended to tbe court that foreclosure be withheld unless absolutely necessary. This recommendation was suggested by B. H. Cosby, the life beneficiary, in a letter to tbe plaintiff dated 1 February, 1933, and repeated several times thereafter in letters to tbe Trustee. Mr. Cosby likewise wrote Mr. Cheshire that be knew tbe difficulties “be was up against,” in administering tbe trust, and that be did not blame him “for tbe conditions that existed.”

To bis Honor's findings of fact, conclusions of law and judgment entered pursuant thereto, tbe appellant presents forty-four exceptions for our consideration. We deem it unnecessary to discuss them *seriatim,*and shall not attempt to do so.

Tbe appellant challenges tbe correctness of tbe reports of tbe present Trustee and tbe authority of tbe former Trustees to act under the last will and testament of Laura F. Cosby, as well as tbe correctness of their reports filed in tbe office of tbe Clerk of tbe Superior Court of Wake County, which reports have been approved by tbe clerk.

His Honor held that tbe defendant, Edwin F. Hartshorn, Administrator of B. H. Cosby, deceased, “stands in tbe shoes of bis intestate. B. H. Cosby was under no disability between the year 1919 and tbe date of bis death in 1940. He bad a perfect right to bring action against W. N. Jones or William Bailey Jones or their personal representatives, or against tbe plaintiff, Mr. Cheshire, for any maladministration of tbe trust. Tbe court is of tbe opinion that tbe conduct of B. H. Cosby as set forth in tbe findings of fact constitutes an estoppel against bis administrator to maintain bis cross action in so far as it relates to administration of tbe trusts of W. N. Jones and William Bailey Jones.” W. N. Jones died in October, 1928, and William Bailey Jones died in August, 1932. B. H. Cosby did not die until 14 November, 1940, more than twelve years after tbe death of W. N. Jones, and more than eight years after tbe death of William Bailey Jones. Tbe plaintiff, in bis reply to tbe cross action of tbe defendant, Administrator, pleaded estoppel as to any claim against tbe former Trustees. We think bis Honor's findings of fact and conclusion of law on tbe plea of estoppel must be upheld. *Sugg v. Credit Corporation,*196 N. C., 97, 144 S. E., 554; *Meyer v. Reaves,*193 N. C., 172, 136 S. E., 561; *Holloman v. R. R.,*172 N. C., 372, 90 S. E., 292; 19 Am. Jur., sec. 62, p. 676, *et seq.*

*169¥e come now to tbe question whether or not tbe issues, nine in number, submitted by tbe appellant are appropriate issues based on tbe facts pointed out in tbe exceptions and raised by tbe pleadings.

In the case of *Cotton Mills v. Maslin,*200 N. C., 328, 156 S. E., 484, *Stacy, C. J.,*speaking for tbe Court, said: “A party wbo would preserve bis right to a jury trial in a compulsory reference must object to tbe order of reference at tbe time it is made, and on tbe coming in of tbe report of tbe referee, if it be adverse, be should seasonably file exceptions to particular findings of fact made by tbe referee, tender appropriate issues based on tbe facts pointed out in tbe exceptions and raised by tbe pleadings, and demand a jury trial on each of tbe issues thus tendered. *Wilson v. Featherstone,*120 N. C., 446, 27 S. E., 124; *Yelverton v.*Coley, 101 N. C., 248, 7 S. E., 672.” *Texas Co. v. Phillips,*206 N. C., 355, 174 S. E., 114; *Anderson v. McRae,*211 N. C., 197, 189 S. E., 639; *Gurganus v. McLawhorn,*212 N. C., 397, 193 S. E., 844; *Brown v. Clement*Co., 217 N. C., 47, 6 S. E. (2d), 842.

Tbe first issue is typical of eight of tbe nine issues tendered and is as follows: “Was tbe plaintiff tbe duly appointed qualified and acting trustee under tbe will of Laura E. Cosby, as was alleged in tbe plaintiff’s petition and denied by this defendant’s answer ?”

Tbe question contained in tbe above issue was answered as a matter of law in tbe opinion of this Court, reported in 221 N. C., 205, 19 S. E. (2d), 855. Tbe defendant herein again appealed from a judgment of tbe Superior Court in this action, which judgment was in accord with tbe above opinion, and tbe Court said: “Tbe rulings of tbe court below were in accord with tbe opinion of this Court and must be upheld. Tbe decision of this Court on tbe previous appeal, upon tbe same facts then and now presented, constituted tbe law of tbe case. *Pinnix v. Griffin,*221 N. C., 348; *Robinson v. McAlhaney,*216 N. C., 674, 6 S. E. (2d), 517. Tbe decision on tbe former appeal decided tbe questions now presented, and is therefore conclusive on tbe points so adjudged.” *Cheshire v. Church,*222 N. C., 280, 22 S. E. (2d), 566.

Tbe eight issues referred to above raise no pleaded issues of fact, but only questions of law.

Tbe ninth issue tendered is as follows : “Has tbe plaintiff fully, justly and truly accounted for tbe income of tbe estate of Laura F. Cosby, so that from tbe evidence tbe amount of tbe income and *corpus*can be determined in order to close and settle tbe estate under tbe express will of Laura E. Cosby? (a) Has tbe plaintiff prudently and skillfully managed and attended to tbe affairs and received and collected tbe funds of tbe estate of Laura E. Cosby? (b) In what amount has tbe life beneficiary suffered a loss or damage by tbe failure of tbe plaintiff to competently, prudently, honestly and justly, as well as loyally, manage, collect and *170account for tbe estate of Laura F. Cosby under ber expressed will?” This issue is not properly raised by tbe pleadings. Tbe pleadings allege conclusions of tbe pleader and present questions of law, but do not raise issues of fact for tbe jury. Tbe appellant bas tendered no issue pointed out by tbe exceptions and raised by tbe pleadings, wbicb gives bim tbe right to a trial by a jury.

In view of tbe above conclusions, it is immaterial whether or not tbe appellant waived bis right to a trial by jury by not excepting to tbe second Order of Reference, wbicb affirmed tbe original Order and appointed another Referee, tbe original appointee being unable to serve.

In tbe hearing below on *the*exceptions filed by tbe appellant to tbe report of tbe Referee, bis Honor considered tbe exceptions, reviewed tbe evidence taken before tbe Referee, gave bis opinion and conclusion, both upon tbe facts and tbe law, and entered judgment accordingly, wbicb resulted in a modification and confirmation of tbe report of tbe Referee. A careful consideration of all tbe exceptions leads us to tbe conclusion that tbe judgment of tbe court below must be upheld. *Anderson v. McRae, supra.*

Tbe funds received from tbe estate of Laura E. Cosby by tbe former Trustees were loaned to individuals and secured by deeds of trust or mortgages on real estate, except in three instances where small sums were loaned and secured by chattel mortgages. All these loans were made prior to tbe appointment of tbe present Trustee. There is no evidence tending to show they were inadequately secured at tbe time they were made. Tbe security in many instances became inadequate during tbe financial depression wbicb began in 1929. As a result, tbe life beneficiary sustained substantial loss on income and tbe *corpus*of tbe trust fund bas sustained considerable losses. However, there is no evidence on this record that tbe investments were not made in good faith or that tbe present Trustee bas not exercised due diligence in bis efforts to collect tbe notes outstanding at tbe time be was appointed Trustee. *Sheets*v. *Tobacco Co.,*195 N. C., 149, 141 S. E., 355.

It will be noted that tbe ultimate beneficiaries under tbe will of Laura E. Cosby, to wit, Barium Springs Orphanage and tbe First Presbyterian Church of Raleigh, have never questioned tbe acts or tbe good faith of tbe respective Trustees.

Tbe judgment of tbe court below is

Affirmed.