Brumbaugh v. State ex rel. Schleigh

Miller, J., delivered the opinion of the Court. In this case suit was brought against the surety on a bond given by a trustee appointed under a decree for the sale of real estate, to recover a small sum of money ■audited to the equitable plaintiff out of the proceeds of sale. The facts necessary to be stated are substantially as follows: Samuel Spickler died in 1838, leaving a will by which, •among other devises and bequests, he devised to his son Jacob, a farm in fee, but subject to certain charges thereon in favor of other parties. The will is set out at length ⁶⁴⁴ in the report of the case of Cunningham and Wife vs. Spickler, et al., 4 Gill, 280 .

Jacob Spickler, the devisee, entered into possession of the 'farm and died in 1841, intestate and without issue. Shortly after his death a bill was filed for the sale of the farm for the purpose of partition. The bill sets out the devise of the farm to Jacob by the will of his father, “subject to certain charges in said will contained,” and a copy of the will is made an exhibit, and prayed to be taken as part of the bill. The parties to this proceeding were the heirs at law of the deceased, and they included most but not all of those in whose favor the charges were made.

Among those not made parties-were the testator’s grandchildren, the children of his. daughter, Elizabeth Schleigh, to whom he bequeathed $1000, to be paid at their mother’s death, and of this sum he required his son Jacob to pay one-fifth. The mother, Mrs. Schleigh, who was a sister and one of the heirs at law of Jacob, was made a party, but her children were not, and. some of them were not then in esse. After answers admitting the allegations of the bill, a decree was passed in the usual form .for a sale of the land, appointing David Brumbaugh trustee to make the sale, requiring him to give bond in the penalty of. $8000, with approved security “ for the faithful discharge of the trust reposed in him by this decree or which may be reposed in him by any future order or decree in the premises,” and to bring the 2woceeds of sale into Gourt to be disposed of under the Court’s direction. This decree was passed on the 4th of December, 1843, and on the 8th of the same month the trustee gave bond in the required penalty with the appellant as one of his sureties.

The bond recites the passage of the decree and contains the usual condition “that if the above bound David Brumbaugh shall well and faithfully perform the trust reposed in him by this decree, or that may be reposed in him by any future decree or order in the premises, then the above obligation ⁶⁴⁵ to be void, otherwise to remain in full force and virtue in law.” The trustee then proceeded to sell, and, though the advertisement is not in the record, yet it is manifest from his report that he sold the land free of all incumbrances, and that the purchaser supposed he had acquired an unincumbered title. The property sold for $3876.71, and the sale was duly ratified in May, 1844. In November following, the auditor stated an account distributing the proceeds, and made a report in which he states that after deducting commissions, expenses and costs, he had distributed the balance ($3644.75,) first “ to the payment of the legacies and charges upon said estate created by the will of Samuel Spickler which is an exhibit in this cause, and then the remainder ($1256.25) after satisfaction of said charges to the heirs-at-law of said Jacob Spickler.” The account shows that among the items audited to satisfy these charges was the following: “To the children of Elizabeth Schleigh one-fifth of $1000, as per will of Samuel Spickler, to be paid at her death— $200.” The account was finally ratified on the 24th of February, 1845. From the order of ratification no appeal was taken by the heirs-at-law, the only parties injured thereby if the distribution was erroneous.

They received the shares audited to them respectively, making no complaint, and the trustee retained the $200 audited to the children of Mrs. Schleigh until her death in 1877, a period of more than thirty-two years. She died leaving four children and six grandchildren, children of a deceased daughter, who thereupon filed a petition in the equity cause praying that the trustee be required to bring into Court this sum of $200 to be distributed to them. An order to that effect was immediately passed, and the auditor stated an account showing the amount due each petitioner. This account