Francis B. Fogg, and Mary, his Wife, v. John Izard Middleton and Henry Middleton, 2 Hill Eq. 591

Chancellor Johnston delivered the opinion of the Court. " Under the decided cases, the delivery of the bond would have been established upon even less evidence than was furnished on the trial. As it is, the proof fully sustains the Chancellor’s conclusion on the fact. The law of the case seems to admit of little doubt. Cases have been quoted to show that equity will not aid a mere volunteer, where no legal right has passed, or where the action of this Court is necessary to constitute the relation of trustee and cestui que trust. But the delivery and acceptance of the bond, ipso facto, constituted Mr.

Henry Middleton trustee. The bond contained his commission, and set forth his duties. It also vested in him the debt of which it was the evidence; and if that debt should be detained, he had a legal remedy to recover it. Wherever a trustee has accepted a trust, he is bound to a diligent discharge of his duties. If he holds choses in action, with a clear remedy on them, it is unfaithful in him not to endeavor to enforce them. If he holds a bond, .even although that bond is a free gift, he has no right to remit it.

It never was the law that a trustee was not as amenable to a volunteer cestui que trust, as to one who is not a volunteer. If that were the law, no executor would be accountable to collateral legatees. So that without going further than Mr. H. Middleton, the plaintiffs have a right to come here to compel him to perform his trusts. But if he is liable, it resnlts that he may be compelled, also, to surrender to his cestui que trusts all the legal remedies he possesses.

And this puts the plaintiffs in possession of the bond, to all intents, as if it had been drawn to them as obligee, or assigned to them/ If it had been drawn to the plaintiffs by Mr. John Izard Middleton, or assigned to them by Mr. Henry Middleton, will it be pretended that the plaintiffs could not recover from the obligor, even if it was given on no consideration ? If it had been given on a consideration, which failed, that would be a good defence.

But the original want of consideration would be none. *But if a consideration were necessary to support the transac- r^rqq tion and enable the plaintiff to sue here, one existed in this case, L ' not valuable, indeed, but meritorious. The Chancellor has stated it truly and forcibly. ,. The object was to heal family discord, by curing suspicions. In Wiseman v. Roper, 1 Ch. Rep. 84, articles were enforced in favor of a nephew against an uncle, whose principal object in entering into them was to reconcile the nephew’s fathertp him. In Stapilton v.

Stapilton, 1 Atk. 1, Lord Hardwicke held a volunteer entitled to the execution of an agreement intended to establish the peace of a family. If the Court, in this case, travels beyond the case of the trustee and cestui que trusts, and takes cognizance of the liabilities of the obligor, it is at the instance of the defendants, who insisted on his being made a party.

Being here, at his own instance, the Court will, to' prevent circuity of action, decree against him what he would have been liable to pay the defaulting trustee, or what the plaintiffs could recover, if the bond had been assigned to them/ The payment of the bond-is, by its terms, made to depend upon the extinguishment of the debts and legacies charged on Mrs. Middleton’s estate. The instrument should receive a reasonable construction ; neither too strict nor too loose on either side.

On the one hand, it could not be the intent of the obligor, when he gave the bond, to give an unavailable obligation, which this would be, if he might evade payment, by capriciously delaying to discharge the precedent obligations. On the other hand, he should not be bound to greater diligence, in paying the prior obligations, than would be exacted of one who had accepted a trust to pay them out of the assets of the estate; and if, by reasonable diligence, they could not be paid as early as the plaintiffs could have wished ; or if, without fault in Mr.

Middleton, the assets were wasted by an agent (which would excuse a trustee), these circumstances should be taken into consideration in fixing the time when the debts and legacies should have been extinguished. Of course, these matters will be attended to in the reference which the Chancellor has ordered. ... The motion is dismissed. Chancellors Johnson and Harper concurred. Chancellor De Saussurb absent, from indisposition.