The true Democrat., 1855-04-24

The Opinion of Hon. Hubert F. Fairchild, Chancellor of the County of Pulaski, de- livered goth April, 1855.
 THE STATE OF ARKANSAS,
 THE TRUSTEES OF THE REAL ESTATE BANK.
 This case as now presented before me upon the motions to discharge and make abso- lute the misi appointment of receiver, is free from the difficulties that beset me in the consi- iteration of the motion made at former day of this term.
 The order having been made as rule nisi, and the defendants having appeared to show cause against it, relieve the question from the difficulty upon the subject of notice.
 In my former opinion upon this subject, when the motion for receiver was submitted by the complainant on evidence, expressly declined to examine the competency or weight of the tes- timony in detail, reserving the right and avow- ing the intention to do so should 1t afterwards become proper upon the final adjudication upon the motion.
 I am happy in not being now obliged to such an undertaking for l cannot deny to myself that some of the evidence came from sources hard ly authentic for the derivation of satisfactory testimony, any more than 1 cannot escape the conclusion that the proper effect of the whole evidence was to induce such action as the order of the court disclosed. But as the matter now stands it is to be resolved by the record and mainly by the answers of the trustees, whether the further administration of the trust fund under the deed of assignment of 2d of April A. D. 1842, shall be prosecuted by the residua- " trustees or by receiver acting under the ap- pontnlent, direction and protection of this court.
 1 am perfectly clear in declaring that it is my unmstakable duty to adopt the latter part of the alternative, and I therefore over-rue the motions of the defendants and sustain that o1 the State. The rule must be made absolute- A receiver must be appointed whose business il will be to discharge the trust under the provi- sions of the former order and such other and further directions as he may receive from this court.
 make this determination upon two conclu- sons, both of which are drawn from all of the answers of the defendants, Biscoe, Drennen Walker and Faulkner.
 l One Is that the trustees have not performed their trust; the other is that they cannot do it. To establish the first point, reference may be made to the deed of assignment to ascertain by the deed what was to be done, and to their an SWoTS to see WnaC QaS been OOno.
 By the deed, all debts due to the Real Estate Bank were to be collected by the first day o January, 1851, in notes of the bank, unless when specified acts of resistance to the recover ing of debts, might induce the trustees to de- mand specie, and with the exception made fol one debtor who was to Ge allowed to pay his deb by a return of State bonds, and the assets o1 the bank were to be applied to the payment O. its llaI in q rte Or6a the deed.
 These are some ofthe main provisions of the deed, all that need be here noticed
 The answers do not pretend that the trust has been performed in these respects but state several matters as reasons why 1t has not beer done.
 It would be useless on this motion to spend time in examining into the verity of these req sons, for however numerous or forcible may have been the obstacles nterposed in the way ot the trustees, they can never be successfully urged In court of equity on charge of breach of trust
 trustee has but one law, and thatis the in- strument whence he derives his authority; what that requires him to do, he must do; and if tha, become difficult or impossible to be done from his own intrmity, from the injury of others from natural accidents or (auses he has no dis cretion to do what may seem to him to be pro- per to be done under the discouraging circum- stances. To protect himself he should ap- ply to the tribunal that watches over the conduct of trustees, and which while guarding trust fund will also shield the honest and vigi- lant trustee from harm or loss
 If the trustees of the Real Estate Bank have been so hlndercd, as their answers represent, by mjudicious legislation, by executive hostility by tluctuating and uninteligent course of ju- dlclal decision, by popular prejudice, by drought and by flood, or by all or any of the ills that human perversity and provdential dispensa tons may cause or permit, courts of chancery were always open to them for relief and relief could have been meted to them according to their endorsements. They might have been excused from longer occupancy of their trus- teeship, or their course variant from that pre- scrlbed in the deed might have been sanctioned by the court. But not having done this, though having done as well as they others could have done, although as men excusable and even to be commended, from their motives and results of their action as trustees, they have not observed their fundamental law, that is, to perform strictly their trust, and cannot be taken to be the proper persons to continue in charge of the trust fund
 No'i'' VI oiuIuy dooulllC anu CUlIIUc UO Lllcln- selves alone the right to use discretion in the performance of trusts to fulfill their spirit with out adhering to their letter
 The second conclusion upon which this de- clsion is made is the plain admission that the trustees are unable to execute the trust.
 The inef1icency of trustees or their inability to perform the trust, are reasons as potent for their suspension from office, as affirmative vio- ations of their duty.
 think it may be safely asserted that, in gen. erll, trust estates and bene6ciaries are as much injured by the indulgence of kindly meaning trustees as by the fraud and peculatons of cor rupt ones.
 And although the respondents maintain that their compromising course has resulted well for the banks assets it is easy to see that the exigences of the case demand their new man. agement. The time is near when the whole capital of the bank, increased to more than double its first amount, must be paid or pro- vided for. The assets of the bank must be turned into means to meet the current and ap- preaching liabilities and as the trustees admit they cannot do so and do not wish to incur the