The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1884-02-08
After q Trust Fund.
IMPORTANT NORFOLK CASE DECIDED BY THE
COURT OF APPEALS ON YESTERDAY.

IMPORTANT NORFOLK CASE DECIDED BY THE
COURT OF APPEALS ON YESTERDAY.
The Court Of Appeals yesterday rem
dered its decision in the case Of Fitzgib-
bon Us. Barry and others, from the Cor
poration Court OF Norfolk. The case Is
one OF peculiar interest, involving a large
sum OF money and many important legal
questions. The suit was brought by Mrs.
Barry, married woman, and beneficiary
In certain deed, executed in 1867 by her
brother, Charles Wills, Of Norfolk. The
latter was an improvident, dIssipated
young pan, and at the time OF the execu-
lion OF the deed was the owner OF valuable
property. real and personal, in that city.
This property he conveyed to Fitz-
gibbon, as trustee, in trust to man.
age it, and out OF its profits to provide
for him (Wills) comfortable main
tenance and support. The trustee was In
vested with large powers and discretion in
respect to the management OF the property,
being empowered to sell the real estate and
to invest It's proceeds. with the consent OF
counsel selected by Wills,and to make sale
OF and to invest the proceeds OF the per-
sonal property as he might deem best. 1t
was provided in the deed that in the event
Wills should die unmarried and without
issue the property was to go to such per-
son or persons rs by his will he might ap-
point, and in default of such appointment,
then to his sister, Mrs. Barry. FitzSib-
bon accepted the trust, and acted as
trustee until the 21st day OF May,
1872. On that day he filed bill in the
Corporation Court OF Norfolk praying TO
be relieved Of the trust and that Judge w.
II. Borroughs be substituted as trustee in
his stead. The bill alleged that Wills was
person OF weak mind, incapable OF man.
aging the trust property, and prayed the
Court to assign him guardian dd Item to
answer the bill. A guardian dd Item was
accordingly appointed, who answered as
follows: "Acting as ] am for person OF
weak mind, neither admit nor deny the
allegations OF the bill, but / submit the
rights and interests Of the said Charles
Wills in the premises to the protection OF
| this honorable court" Borr0ughs was
also made a party defendant, and filed his
answer, expressing his willingness to ac-
cept the position Of trustee. There were no
other parties TO the suit. On the same day
decree was entered substituting Bor-
roughs as trustee in pace OF FitZglbDon,
and soon thereafter the whole tract pro-
perty was turned over by the latter to
Borroughs.
In March. 1879. Wills died unmarried,
without issue, and intestate. BOrroughs
deiauted as trustee, and being insolyent
and unable to account to Mrs. Barry for
the trust funds which went into his hands,
she accordingly sued Fitzgibbon in the
Corporation Court of Norfolk, to hold him
liable for the funds so lost or misapplled by
Borroughs. FitzgibbOn defended on
the ground that he was relieved
of liability as trustee by the decree
Of May 81, 1872, substituting Bor-
roughs as trustee in his stead. lie
insisted that Mrs. Barry's interest in
the property at the time the suit was
brought, in which that decree was render
ed, was OF such contingent and remote
character as that she was not necessary
party to the suit; and further, that, by the
doctrine OF representation. she was in fact
represented i'm the suit by her brother,
Charles Wills. who was a defendant to the
suit. and was. moreover, estopped by her
conduct after the decree OF substitution
was entered from assllling its validity.
The Court, however, Overruled these de-
fences, holding Mrs. Barry not bound by
the decree, and decreed against Fitzgl0'
bons for the sum claimed by Mrs. Barry to
be due her. This decree the Court OF Ap
peals affirmed.
Judge Hinton delivered the opinion, In
the results OF which Judges Lewis ant
Fauntleroy concurred. Judges Lacy anC
Richardson dissented.