Henry B. Pettibone et al. vs. Noah James, Administrator of Ely, 25 Miss. 495

Mr. Justice Fisher delivered the opinion of the court. This was a bill filed by the appellee’s intestate, John Ely, in the vice-chancery court at Natchez, to subject the estate of the appellants, Henry B. and Sarah Pettibone, to the payment of a certain debt, alleged to be due to the complainant for his services rendered as overseer on their plantation, during the years 1839, 1840, 1841; and 1842.

The facts appearing by the pleadings and proof are as follows: The complainants in error, Henry and Sarah, during these several years, were minors, and their estate, consisting of a plantation, slaves, stock, &c., was managed by their uncle, Gerard C. Brandon, at whose instance the complainant acted as overseer on said plantation. Brandon, in his answer, says, that he was the surviving trustee under the last will and testament of Gerard Brandon, deceased, and by virtue of this trust managed and controlled said plantation.

He further says, that he made frequent settlements with the complainant, and upon each occasion gave his (Brandon’

s) note for the amount then due, bearing interest, &c. He also says, that he settled annually his trustee accounts, and retained on each settlement the sum due complainant for his year’s wages. Instead of paying the money thus retained over to the complainant, it was agreed that Brandon should hold it, and consider it as a loan from complainant.

The complainant, having sued Brandon in the circuit court of Wilkinson county, recovered a judgment against him on the 2d of June, 1846, on account of the money then due for his services as overseer, for the sum of $2,661, upon which an execution was issued, and returned nulla bona. Having failed to collect his money at law, he insists by his bill, that inasmuch as his services were bestowed in the management and protection of the trust estate, it ought in equity to be subjected to the payment of his judgment. However correct this position may be as a general rule, it has no application to the present case.

The complainant cannot be allowed to occupy a more favorable attitude in regard to the trust estate, than the trustee, Brandon, through whom complainant claims. A court of equity would, in any case, reluctantly touch the body of the estate merely for its support or management. It will never do so, when it is shown, that the income was not only sufficient, but had been actually employed in part for this purpose. Here the trust money was placed in the hands of the trustee, for the purpose of paying the complainant’s debt.

The moment the complainant took the trustee’s notes bearing interest for the money, and agreed that the trustee might retain the money at interest, it was as to the trust estate a complete payment and discharge. It was thereafter, to all intents and purposes, purely a personal contract between the parties thus contracting. Any other rule would enable the trustee to speculate upon the estate in his hands. Instead of his investing the surplus, or putting the money at interest, he would be managing it so as to charge the cestui que trust with interest.

It is true, the trustee would be chargeable with interest on. the money in such case, upon settlement with the cestuis que trust. But in the present case,. Brandon was only the appellants’ agent or trustee to make payment, till he settled with the complainant. When he made such settlement, he executed this particular trust or agency. T-he cestuis que trust were not, thereafter, responsible for the acts of the trustee in this respect. ■ Decree reversed, and bill dismissed. Smith, C. J., having been of counsel in the court below, gave no opinion.