The eastern clarion., 1859-04-13
DECISIONS OF THE HIGH COURT
lh'PPtt' 'rpffe7V fHF me EH&fffH tldri0H,
No s6N3
Austin l. Prewitt, appellant, ". Thompson W Land,


lRported expressly fer ttc Eas'so, Clarion.
no. s6o3l
Austin l. Prewitt, appellant; " Thompson ". Land,
appellee.
Appeal from the Chaucery Court Of Monroe county
Inns cause, with two others involving the same
principles, No S6ni and No. sos, Is submitted to Us
on appeal from the Chanccry Court Of Monroe
County.
The bll was filed by appellee against appellants, to
10 the payment Of an account for goods. and
merchandise lled exhibit 10 the bill alleged to
have been purchased bv Mrs hogan. one If the ben
ctciaros for herself aud her children. who are the
remaining objects Of the trust.
A decree was rendered in the court below ia favor
OF appellee, for the amount Of the account and in
ierest against appellant ordering the money to be
paid in three months from the date Of the decree.
and on failure, directing the commissioner to seize
and sell sufficient amount Of the trust property 70
pay said sum and costs aud dycsung the title ofsAd
property out Of the trustee and ye=tng It ia the
missioner, for that purpose From this decree, tins
appeal u prosecuted aud ts rendition, both upon
the ae, m proof as well a. the principles Of equity
AhnHi'ei' laslBled a. error.
The doctrines Of a court Of equity, in subecting
trust property 10 the payment Of the debts Of the
ostu qt trust are derived nom is general lurisdic
ton 60 enforce the proper execution of trusts for
th" advantage Of those Interested. Courts Of eauity
d"u"t however, undertake. {" control the dispos-
tons Of grantors. when they are legal; or to mould
them int" forms. rto other different purposes
iI'h those expressed hy OF naturally arising out Of
the instrument Of trust. Nor do they assume TO
create, confer additional rights benefits or obra
tons, the parties those originally designed by
the grantor They simply ann 10 enforce the execI-
ton Of such rights, powers and duties, such lust
and beneficial discretion a. are gwen or conteirI,
ted by the instrument creating the trust: when from
any cause the trustee fails or refuses to DISCHARGE
his duty u relation % the trust subject Iwasney5r
intended to defeat the beneficial operation of these
conyeyances in guarding the objects Of the trust
against their own eNtrayagancc ignorance weak
ness well a. against the wickedness Of scheming
sharperS. who usually profit by their misfortunes ii
was not designed 10y courts Of equity to make the
trustee the mere agent Of the benefcaries, to aid
them IN sIanderng the estate without the power Of
restraint discretion where both have been vested
IN theih hy the dtt IN its very nature trust Is an
eqWtahl" interest ~ property, distinct from the legal
title or ownership.
In other words t-ay~ Judge story the legal owner
holds the direct and absolute dominion the
property, view Of the law; but the income. profits
benefits thereof IN his hands belong wholly, or in
part, others and these uses, benefits. or charges
constitute the which courts Of equity will com
pei the legal owner, trustee 10 perform favor Of
the csshi 9Hs trust or beneficiary f-I2nd ~tory's Ia
JuriSp gI Unless some interest power, or discre-
ton for that purpose j. vested IN the hy the
terms of the trust or by necessary implication, even
in a court Of equity. the henehcaries have no
use OF property m the cDpp of the trust estate but
only right 10 the enjoyment Of the proceeds dis
unct from the property itself-L2nd Story, 96S p.
3l5 The eestul que trust has property in the
while the property IN the body Of the estate belongs
to the trustee, for the purposes expressed in the
grant Like any other property tins Hsc Is alienabe,
or may be disposed Of M rtuHl hy operation Of law
Hence married woman may have separate estate
y 'se and may charge u IN the same manner she may
charge lI other separate estate IN equity but she
has no power tG charge IN any manner by her act,
the st1tc over which -he has no control and the title
to ULeH I- vested ia another
The decd OF trust j. the law Of her title and inter
est. If the deed, therefore, OHig entities her to the
proceeds of the trust property. she j. incapable in
any manner Of asserting successfully greater inter
than such proceeds by virtue of the trlst-Aylit-
tie Ashton, lst NJ a Craig. p. lO5-lu; Story.
1881 mote 81 When. however the legal title to the
property is vested IN "A trustee. for the benefit of
married woman, and by the terms Of the instrument
separate il the ant enjoyment Of the proper
tv eiL well the proceeds and Income Is secured
10 the wife, she may IH such case, in equity, charge
| the estate corpus, well as the proceeds.
But even IN deeds Of trust making conveyance of
property % trustees for the support and mainten-
auce Of married women and their children, giving
discretion 70 the trustee TO the corpus of the
tate for such purpose, 1t l. obvious that Of
equity. IN the exercise ol thelr undouoted general
jurisdiction the subject Of trusts, and to prevent
total failure Of justice well a. the object Of the
trust. Will compel the trustee 10 ~ performance
see story. col p 3lO. In such cases. while the
court Will thus control the discretion Of the trustee,
II VIII not make the eXtraEagant or reckless conduct
Of the beneficiary the measure Of its discretion, but
will see that the power i exerts Is necessary and
| proper for the benefit Of all concerned. and that
IT, exercise is demanded for the preservation Of the
subject or the present and future interests Of the
forced into sub-eryIence % the IndiScrctloG of inn
! provldent bcneficlarie-, !nhumau Chapmen, who
| have produced the necessity which they plead.
Were admit therefore. that in the case before
us both the trustee and the court, 10y the terms Of
tins deed hare the 0Uer direct the sale Of portion
arises ought the court 70 compel me trustees under
/ the circumstances here TO exercise It.
II admitted that where discretion j. thus given, it
Is only limited in its exercise by the necessity which
| invokes it, aud, and TO the means at command.
Nor VIII the court look alone 70 the future in the
exercise Of us power, but It VIII regard with favor
the claims Of those whose generosity charity has
| led them 10 relieve the wants and necessities which
the trustee should have satisfied ont Of the body
Of the II II could not have been done other
wise. But while the court will he thus liberal in it,
discretion 70 the benevolent and upright it is called
upon by every principle Of duty. justice and humanl-
y. 20 watch with unremttlng care and jealousy the
nprovideut contracts and liabilities which are thus
presented for rs sanction, and against which these
| trusts are usually designed 70 guard.
| The proof here shows that the defendant, Mary
| Ann Began. the mother If the other benehclarles
and who has contracted this debt has only ie estate
! u the proceeds Of the properly. to be enjoyed in
| common with her chdred. They are al to be main
tanned ana supported out ot y, at the discretion oi
the trustee under the control Of the Court Of Chance
~. To allow t.- at her pleasure to charge the estate
with oH d5ts that she may see NJ to contract without
reference to the necessities Of the children present
| and future, or even TO her own future, would be TO
substitute her discretion for that which the grantoT
under the law has vested IN this trustee, and Whch
| court Of equity can alone supervise
| Tu, parties without remedy IN law, and IN pre-
| seutiug themselves here. they must show a case in
which II would have been the duty Of the trustee to
sell the property for the benefit Of the mother and
| children. They cannot ask court Of equity TO dc
what the trustee rightly refused 10 do. What neces
>ity j. shown To have existed: The record far as
direct proof Of necessity for the sacrifice Of one
more Of the negroes j. wholly silent Il Is not only
| YTyuuantlv dumb. 70 the existence Of such neces
~ity. hut on it, face, when we come 10 examine the
character and amount OF these several accounts they
afford strong evidence Of the absence Of such psc6sSt
IT, There j. not proof Of the sale and delivery
Of the articles 50 FAR a. q could affect the trustee, oI
the interests he represents. The acknowledgement o
Mr.. Began, even when her signature Is proved
could only be evidence against her, and not against
other defendants tins The articles purchased
! show that there was no such necessity would au
thorize the sole Of minors property.
| But again: no such decree that rendered here
could have been legally made in tine absence Of the
minor children Of Mrs. Began. In the case We are
! considering, leave was granted to amend the bill sC
a. 70 make them parties; but such amendment does
not appear in the record does II appear that pro
cefs was either served On them pcr-"nay or oth"r
A guardian al Eteia was appointed for them, VII,
I 4 al 1.r.r .E.. L. L.,
| jurisdiction over them, until service Of process, L
| make such an orier.-and this upon general pTinci
pies, as determined by tins court IN Staunton Pol
| lard, y Miss. X. =. l55.
In tile other eases leave was granted the hill amend
ed, and guardian al item appointed. who filed his an
-wer. but no service Of process shown on the minor
| by the record.
The allegations Of the bll are also insufficient L
found decree for the sale of the trust property
The object Of the bill. IN it, inception, evidently
10 reach the proceeds Of the trust property and hence
| presume. the omission to make the children o
Mrs. Began parties. 1t founded on the idea tina
| Mrs. Began had a separate property IN the proceed
which she had the right to charge with the paymen
Of her debts equity A. bill to reach the pf0pcrt
itssy upon the ground that the trustee had discr,
ton to sell or dispose Of 1t, and that circumstance
II j. defective, because it does state the facts show
ing such necessity. with sufficient particularly Of De
tail a. 20 make i apparent that the trustee neglecte
! his duty IN this pcct.-. 2d story, D. 324
II is Insisted, however that the trustee ought to
e-topEed from setting up hs defence here, becaus
the debt was contracted on the faith of his title an
| hI- promise 20 paw.
t. th, il may be answered. that for the persons
| engagements or contracts which the trustee may b
liable, full and adequate remedy exists at law
such contracts. or engagements, can give the com
Iuris iction to render decree against him in th
proceeding. nor can he be permitted to prejudice tn
trust by any such arrangement, not sanctioned b
the deed.
The objection taken 10y counsel for appellant
this proceeding the ground that the appellee ha
not obtained Judgment at law, Is not tenable Tn:
| doctrine is applicable to ieg1i demands seeking tn
aId Of court Of equity to subject equitable assets
The party thu, seek king the aid OF equity. must fir
exhaust his legal remedy by judgment execution an
| HfV u bona. But this doctrine Is not applicable
equitable demands when the party is without legal ren
cy ami must therefore resort: IN the Hr6t instance
a court Of cquity-Sec % Miss. 239, Mchellvs. Ote
! - Miss. 4l6; SWEET " Rcurlce ct el.
Let the decree DE- reversed and bill dismissed.
|