Weekly national intelligencer., 1848-10-21

would be valid against the creditors the estate unless there
collision with the But the decided
that point does the opinion of the apply an
assignment Of property specifically bequeahed that
point in the case raised in the argument But, however
that question shall be ultimately decided, may, think,
be safely asserted that practice under this law there has
been no instance in Maryland since its passage in which
executor acting fairly and bona d has undertaken to sell
or pledge personal property specifically bequeathed without
previous order from the Orphans Court And the PROPOSE
ton of Samuel Jones' of the executors he other
not uniting in the anse) transfer this stock, long a
ter the death OF wealthy testaor, without first obtaining
order from the court to justify him. must have satisfied any
OF common experience in business that he grossly
abusing his trust In South Carolina under law very sm
lar in its provisions has been decided that the sale of such
property by executor vod unless made by the authority
of the cou(4 Dess. 52a Andwe think there strong
reasons to support that decision.
The cases referred to relation to transfers Of Government
stocks by the Bank of England do not apply to this
They collected in Dan Oh Practice, ZOE, margin
and they all turn upon the meaning and policy Of the acts Of
Parliament by which The management of the public stocks
and annules were givent the Bank of England with
reference to the duties imposed by these acts of Parliament
that the court say that the Bank OF England is bound
take notice OF trust affecting public stock standing its
books and must look only to the legal estate. But this opn
Ion cannot influence the decision Of this because the p
Wtges and obligations OF the bank must be determined by its
charter, differing widely its and its object from
the English acts Of Parliament Certainly of the Eng
sh convey the idea that upon general principles of law
bank is not bound to notice trust Of its own stock, and
corporation, is bound by the same obligations moral and le
GAL (whee the rights of third parties concerned) that ap
ply to the OF individual, unless it explicitly exempt
ed by law And an individual who coniederates with
executor, and assists him in efraung his cesu que trust
liable to the party injured there be why bank
which knowingly enables executor to convert the property
OF the ce que trust to his private should not be
equally responsible And the difficulties to which the Bank
of England would be subjected, if bound to take notice Of
trusts in the Government stocks and which strongly stated
BY the Chancellor, in the Of Hartiga the Bank Of
England g Ves 3d. altogether inappicable here. For
putting aside the immense difference in amount and character
between the Government stock of England and the stock of
this bank Chancery suit be necessary in this
State for the protection Of the bank when stock bequeahed
trust is required be sold for the payment of debts be.
cause under the of 79S order for the sale by the
Orphans Court, which could at any time be obtained in
summary way without delay and wthoutexpense, would pro-
tect the bank from all responsibility, and occasion delay
embarrassment in the payment Of debts and settlement Of the
estate
The case, hen this: The will Of the testaor in effect
directed that this stock should be sold transferred du
ring the lifetime Of the complainant and the dividends during
that time should be received by his executors and paid
to the complainant One of these executors proposes to
transfer this stock in order to money it for his pr
purposes and the officers of the bank knowing the
purpose for which ii transferred with circumstances
before them sufficient to create strong presumption that such
the intention Of the executor and therefore, sufficient
to put them inquiry, permit the transfer and certify that
the ansferee is entitled to the stock Relying this cer
6cate the Merchants Bank induced to loan its money
upon and having knowledge that it belonged to
Talbot JONES' had been transferred by his executor the
stock be followed in its hands, the hands Of those
to whom it afterwards sold it. and charged with the trust
created by the will The executor is nsolvent, and there is
therefore, eectu remedy against him. Ought the loss
to be borne by the complainant, who has committed fault
and been guilty OF TO negligence by the Commercial and
Farmers Bank The established principles Of equity seem
require that the less should be borne by the party by whose
negligence misconduct it occasoned. The bank not
only enabled the executor to peeate the wrong by permit
al
title Of the tansee good Justice, therefore, requires
that il should bea the loss
The only remaining question is the nature of The relief to
be administered by the In order do substantial JUS
evident that the decree be directly against the
bank Samuel Jones is admitted to be utterly insolvcnt
The companants claim is for dividends only. She has
property in the stock which belongs to the defendants
William b. Norman Josiah Jones' and Emily j. Alberts in
certain proportions who will be entitled the dividends after
the death Of the complainant. Yet if there difficulty
the of jurisdiction the court would, according the
practice Of the Courts Of Chancey proceed dispose Of the
whole matter in dispute and decree 10 the stock and the
balance in hand in the Merchants Bank, well the di-
vidends But the Jurisdiction OF this court is founded upon
the fact that the complainant is alien. II has uris-
dcon in The controversies between the defendants they
all reside in Maryland Undoubtedly ii the Of the com
panant could not be disposed of and relief administered
her WITHOUT deciding upon the rights of all the parties before
the court should necessarily dispose Of the whole NATTER
and decree the stock well the dividends. Bot the
rights Of the complainant may be adjusted without interfering
with the right Of the claimants Of the stock with the bal
arising from its sae which yet remains in the hands Of
the Merchants Bank for II is mmaenal to the complainant
whether the stock replaced not All that she has right
to demand is that the Of dividends on hundred
and eghywo shares Of Stock which she has lost by the
ggence misconduct Of the officers Of the bank Shall be
paid to her IL the stock bad been transferred The
jurisdiction therefore, TO decree in the controversy, to the
stock, cannot, we Think be maintained.
We have said nothing Of the decree Of the Chancey Court
Of Maryland which has been fled in the case Neither Of the
banks parties the proceedings in that case nor do
they appear have had notice Of neither the com
panant necessary party She had no interest the pro-
pcry be divided and il proposed to change or
modify in any respect the trust in her favor and The decree
passed by the leaves her interests precisely where they
stood before.
In regard the stock ITSELF the decree for partition has m
material respect changed the character Of the trust for the
two executors instead of holding in undivided portions for
the cetu que named in the will hold under the decree
trustees for those TO whom mas been specially assigned
severaly. And il may be doubted whether this circum-
stance does form additional objection to the urisdc
on Of this ia regard to the stock and whether Samuel
Jones and Andrew d. Jones ought be considered as
ueees appointed in that respect BY the Court Of Chacery
hold this stock in trust for the ss que trusts named in
the decree, and therefore, responsible for their conduct TO
that court rather than TO court OF the United States II is
however, necessary TO examine this question: because il
does affect the dividends bequeahcd to the complainant
and certainly form no objection the jurisdiction in
her case.
appears from the evidence that the stock sold for more
than enough 10 pay the note for which hypohecaed
and that besides the surplus arising from this SALE one Of the
sem-arnual dividends upon these hundred and eighty
shares remains in the hands OF the Merchants Bank de-