James E. Broome, William Fisher and Henrietta, his wife, and Sampson Butler, Appellants, vs. Joseph H. Alston, Administrator de bonis non of the estate of Augustus Alston, deceased, Appellee, 8 Fla. 307

PEARSON, J., delivered the opinion of the Court. Joseph Alston, administrator de bonis non of the estate of Augustus Alston, deceased, seets by his bill to recover the possession of certain slaves, with an account for their hire, conveyed in a deed of marriage settlement by Mary Helen Alston, the widow and first administratrix of Augustus Alston, deceased, to James E. Broome, as trustee, for the uses therein declared, in consideration of an anticipated marriage on her part with Sampson Butler.

These slaves consisted of those allotted to the widow Alston as her dower or statutory portion of her husband’s slaves, in •which she took a life estate only, a part of which were subject to a mortgage made by him in his life time to the Union Bank of Florida. This deed of settlement bears date the 29th November, 1813, and soon afterwards the contemplated marriage took place; but the slaves did not go into the actual possession of Broome until some short time after the death of Butler, which occurred in March, 1818, his wife dying about a month thereafter.

To the slaves mentioned in this deed of marriage settlement Mrs. Alston had two separate and distinct titles : to the slaves allotted her for dower an independent life estate in her own right, and, in addition thereto, in her character as administratrix, she held the legal title to the reversion and the equity of redemption of those mortgaged to the Bank.

All the interest, then, attempted to be conveyed by this deed of marriage settlement belonged to the estate of Augustus Alston, except only her life estate in the slaves allotted to her under the statute in the nature of dower; and yet she contracts in her private right and character and without reference to her power or authority as administratrix to dispose of all these interests, and that too upon a consideration, however good and valuable in law, moving to her solely and in no wise to the estate of her intestate. Merely to state this point is sufficient to settle it.

The numerous cases we find in the books of the mal-administration of assets and misapplication of funds seem to arise where the administrator acted or contracted in virtue of his character of administrator. Such cases have nothing to do with the question involving the validity of this deed. Here was an evident attempt to dispose of the assets of the estate in her private right and for her private use and benefit without the slightest reference or resort to her official character and authority.

To allow such a procedure to stand would be to annul all distinctions between the property of tbe estate of an intestate and that of his administrator, and to go back to the dogma which prevailed in the ancient times of Mr. Justice Buller, who held that the property of an estate in the hands •of an administrator to be administered might be taken in execution for his, the administrator’s, private debt. This ■extreme doctrine was very soon modified by the good sense of the English Judges, and modern adjudications have rendered the whole doctrine conformable to principles of reason and justice.

This deed, therefore, must be considered as absolutely void in so far as it attempts to convey any portion of the estate of Augustus Alston. The legal title remained in his estate and was succeeded to by his administrator de bonis non as a portion of his effects unadministered. This suit may, then, be well maintained by this complainant, and it only remains to examine what are the defences presented on the part of the defendants for the consideration of the Court. It is alleged in the answer, amongst other objections to the complainant’s claims, that Mrs.

Alston was in advance to the estate of her intestate to the full amount of the value of all the interests of the estate disposed of by her in the deed of marriage settlement. The proof of this, it is alleged, was of record .in the Probaté Court, and would have been presented to the Court but for the fact that the case was not set down for argument after Fisher and wife and Sampson Butler had, upon their petition, been made parties to the bill. Mrs. Fisher was a daughter - of Mrs. Butler by her first marriage with Alston, and Sampson Butler a son by her last marriage with Butler.

Upon the hearing of their petition to be made parties counsel was heard, it was admitted, at bar, in explanation of their rights and interests. Their application being allowed, they were made parties, and within eight days thereafter the Court proceeded to pronounce its decree without notice to them. It does not appear from the record that the case was set down for argument,' and the only evidence therein that these new parties were heard upon the merits is the recitation in the usual and formal manner at the beginning of the decree that the parties had been heard by their counsel.

This, it is contended, is mere form and • was not intended to and does not preclude these parties from adducing such evidence as they may think proper in support of their claims. It may be so, and, in a matter of such doubt, we think they ought not to be debarred from the adduction of their proofs and a fall hearing upon the merits. If the fact should turn out, as stated in the answer, that Mrs.

Alston was in advance of the estate of her husband as administrator to the full amount of the assets of the estate disposed of by her in the deed of settlement, we wTill not decide in advance what effect it might have upon the validity and effect of that deed; but, in any event, whatever amount, if any, may be found due her from the estate, that will enure to the beneficiaries under the deed.- There is another and very sufficient ground upon which the decree in this case should not be permitted to preclude the distributees of Mrs. Alston from a full hearing upon the merits.

By a rule of this Court, adopted in 1851 and published in an appendix to the fifth volume of Florida Beports, it is provided “ that decrees, whether final or interlocutory, not embracing orders of course, shall be upon notice to the parties or their attorneys before making or pronouncing the same, and a statement by the Judge to the effect that notice has been given, shall be sufficient evidence thereof.” It does not appear in any wise that this rule has been complied with, and the parties complaining, of the decree may well claim to have it opened upon this account.

It is further objected, that the compdainant should not be permitted to proceed with this cause, because he does not allege in his bill that he was prompted by persons interested in the estate of Alston, or moved by a personal interest or a sense of official duty, and the authority of Lord Eldon, in 17 Vesey, 171, and that of Chancellor Harper, in Riley’s Chan. Rep., 35 and 36, are quoted with much force upon this point. We think, however, that this case does not fall fully within the rule laid down by these eminent Chancellors.

The rule seems to be founded upon two elements: the lapse of time, rendering the demand stale, coupled with the absence of any apparent necessity on the part of the administrator to prosecute the suit. Ordinarily, there is no legal necessity for an executor or administrator to show in whose behalf he seeks to obtain a recovery in behalf of the estate he represents.

He is charged with the collection of the assets of the estate, and, to the extent that he may realize them, the law imposes the duty of responding to the claim of creditors and distributees; and it is only in cases where, from lapse of time and other circumstances, there is reason to believe that the estate has been settled to the satisfaction of all parties interested, as evinced by their long acquiescence, and, the suit appearing unnecessary, that the Court would apply the rule.

In this case, it does not appear that the creditors, if there be such, have ’acquiesced in the settlement of the estate for any considerable- length of time, it appearing from a statement filed in the Probate office and made an exhibit here in the answer of defendant Broome that many of the creditors of the estate sued and obtained judgments at law during the administration of Mrs. Alston, and it can well be conceived that they were prevented from further proceedings by the circumstances in which the estate stood.

A part of the property here sought to be recovered was subject, in the first instance, to Bank mortgages, while the whole was subject to the life estate of Mrs. Alston under her allotment of dower, as regulated by our statute. Under such circumstances, a creditor could have had but little encouragement to press his claims. "We think, therefore, that this case is distinguishable from those to which we have been referred, and that the complainant should not, on this account, be estopped from proceeding with his cause.

In this connection, it was urged that the creditors should have themselves complained, or should now be called in; but we see no necessity for this, and consider that it would be a work of supererogation, since they are already represented by the administrator de lonis non, who is accountable to them in the due course of his administration. The statute of limitations has also been set up as a bar to the complainant’s recovery. We think, however, that the defendant Broome does not stand in a position to avail himself of this defence.

If the deed of settlement had been valid, he might, perhaps, have set up an adverse posses-session as trustee against all others save the beneficiaries under that deed; but that conveyance being void and the title to the property therein conveyed remaining in the estate of Alston, the law raises a trust in him in behalf of those interested in the estate, upon the broad general principle that equity will follow trust property into whatsoever hands it may be found and subject it to the trusts originally existing concerning it. Broome, then, becomes a trustee in so far as the property in his hands is concerned.

For those interested in the estate of Alston, his possession was in effect their possession, and he may not claim as against them the lapse of time to give him title. It is further objected, that the complainant had. adequate remedy at law in this case. If this be so, it does not necessarily follow that the jurisdiction of the Court of Chancery is ousted. In the view which the Court has taken of the deed of settlement, Broome is clothed with the character of a trustee in regard to the property of the estate of Alston found in his hands, and is required to account for the same, with its income.

Matters of account are one of the ordinary sources of equity jurisdiction, because of the greater facility and more improved methods of taking the account. But this question is so fully settled by a majority of this Court, in the case of Linton vs. Walker, that it is useless to enlarge upon it here. In that case, a suit at law was dismissed, because, in the opinion of the Court, chancery afforded a more, appropriate method of adjusting the accounts, and the fact that this property was encumbered by mortgages to the Bank affords another ground for invoking the chancery jurisdiction.

It appears from the bill and answer, that Broome, while acting under the deed of trust, purchased, avowedly for the benefit of the beneficiaries under the deed of marriage settlement, certain mortgages and judgments from the Union Bank of Florida, with the intention, as he declares, of disencumbering the trust property in his hands from those liens. These purchases, it is stated in the bill and affirmed in the answer of Broome, were made with his own means, he having substituted mortgages upon his own property in lieu of those which had been given by Alston in his life time to the Bank.

It is probable that the skill and credit of Broome, together with the orphan condition of the children he represented, may have had much influence in effecting favorable arrangements with the Bank in their behalf j yet the benefit of these par-chases and arrangements is now claimed for 'the estate of Alston, upon the suggestion that Broome had or should ’have had funds arising from the hire of the negroes in his possession sufficient to have accomplished his purposes.

It must be considered, however, that there were other claims upon the fund arising from the trust property in his hands, to wit: charges incident to the care and management of the property itself, to say nothing of the support and maintenance of the children for whose use it had been conveyed to him. There is no reason to suppose that he would have encumbered his own property to effect his beneficent object, provided a convenient fund had been at his disposal applicable to such purpose.

If in fact funds .arising from the property of the estate of Alston had been applied to the purchase, the principles of equity might have made the purchase enure to the benefit of that estate; but this was by no means the case.

Broome declares in his answer that he had no participation in the preparation of the deed of settlement under which he acted; that he knew nothing of it or of its contents until it was brought to him for his signature while lying on a sick bed; that these orphan children were committed to his charge by his sister-in-law in her dying moments, and that all his efforts had been directed to save something for them from an estate which the exhibits filed in the case show was irredeemably insolvent. His purchase of these Bank securities was unquestionably with this view and to this end.

He had no general connection with the estate of Alston .and was responsible to it in no wise beyond the liabilities cast upon him by reason of the trust under which Mrs. Alston held the property.

He acted not for the estate of Alston, nor with its funds, but solely with his own means, in behalf of the children whose charge he had accepted. 'To divert the skill and credit thus employed from the true and beneficent channel in which it was intended to flow, to objects indifferent to him, revolts all human sentiments as well as every principle of equity and good conscience, which can never permit the estate of Alston to speculate upon the well-meant charities of a stranger to it. The entire benefit, therefore, of these purchases must enure to the children of Mrs. Alston, afterwards Mrs.

Butler, (Joseph and Henrietta and the infant Sampson Butler,) the beneficiaries in the marriage settlement, in whose behalf Broome, the trustee, declares that he acted. Broome must account strictly to the estate of Alston for the negroes received by him as trustee under the deed of settlement, but, in so doing, he is to be allowed, upon the principles recognized and established in the late case of Linton vs. Walker, 8 Florida Beports, all reasonable disbursements and charges incurred in and about the care and management of the property.

The decree of the Chancellor herein is therefore reversed, set aside and reformed so far as to conform to the principles laid down in this opinion, and the cause remanded for further proceedings not inconsistent therewith.