Burroughs v. Bunnell

Yellott, J., delivered the .opinion of the Court. There are three appeals in this record, and in order to understand the questions involved in controversy, it becomes necessary to refer to the statement of facts prefixed to the opinion of the Court in the ’case of ²⁴ Burroughs vs. Gaither, reported in 66 Md., 171 . By the provisions of the will of Richard D. Burroughs, who died in 1870, the property of the testator was left-in trust to his son, John W. Burroughs, for the benefit of the children of said John. The testator devised all the rents, issues and profits of his estate, to be disposed of as the trustee might think proper, for the maintenance, education and advancement of said children, and when the youngest child arrived at the age of twenty-one years the corpus of the estate is to be equally divided among them share and share alike.

On the death of the-testator the trustee took possession of the estate, but some years afterwards an application was made for his removal. The “Court declined to remove him, but, on the 19th of January, 1880, passed an order appointing C. C. Magruder and R. B. B. Chew receivers, and authorized and empowered them to manage the estate under the direction of the-Court, to sell and dispose of the crops raised or to be raised, to receive the income, rents and profits, and to hold and apply the same under the direction and orders of the Court, and to account annually or oftener if required. The receivers gave bond and entered upon the discharge of their duties. In November, 1884, John W. Burroughs, the trustee died, and in August, 1885, Mary E. Burroughs, his widow, and the mother of the cestuis que trust, was appointed by the Court in his place.

Prior to this appointment, in March, 1884, the death of C. C. Magruder, one of the receivers, had occurred. By an order of Court filed on the 22nd of December, 1885, the surviving receiver was directed to suspend further proceedings, and to bring into Court all moneys under his control belonging to the trust estate, to be deposited subject to the future order of the Court, and he was discharged from any future manage ²⁵ ment or liability for such of the trust estate as had already passed in to the possession of Mary E. Burroughs,' the trustee. Upon the removal of the surviving receiver an audit was required. The present controversy relates to some portions of accounts A, B, C, and D, and statements No. 1 and No. 2 filed by the auditor.

Account A, is a statement of the receipts and disbursements of the two receivers. Account B states the receipts and disbursements of the surviving receiver. Account C is a statement of certain sales and disbursements made by Magruder and Chew, receivers, and sanctioned by; order of the Court. Account D is a statement showing the creation of a mortgage debt upon the trust estate by the receivers, apd sanctioned and approved by the orders of the Court.

Statement No. 1, is a list of claims against the trust estate created by John W. Burroughs before and during the receivership, and of other claims created by the two receivers and by the surviving receiver, together with certain costs and expenses. Statement No. 2, exhibits the amount of commissions due C. C. Magruder and E. B. B. Chew, receivers. The Court helow ratified and confirmed these accounts and statements of the auditor, with the exception of that portion of statement No. 1, which is marked “Debts” created by John W. Burroughs, trustee, both before and after the receivership. The rejection of this portion of statement No. 1 excluded the claims of Detrick and Bunnell, two of the creditors, and each has entered an appeal from this part of the order of the Court.

The debt due to Detrick was contracted by the trustee, John W. Burroughs, long before the appointment of the receivers, and the record shows that its correctness was admitted by the trustee. There is no proof in the record that any ²⁶ part of this claim is unfounded, and it ought to he allowed, with interest from the time when the transactions between the trustee and the creditor terminated. There was error in that part of the Court’s order which operated as an exclusion of this claim. The claim of Bunnell is for necessaries furnished the trustee, John W. Burroughs.

His family, the cestuis que trust, could not have subsisted without the supplies thus furnished. The trust, created by the will of his father, made it his duty to maintain his children from the income of the estate. The claim is for payment out of the income of the estate. Part •of the debt was contracted by the trustee and part by the receivers, hut the whole of it was contracted in order to carry out the purposes of the trust.

On page 17 of the record is an admission of its correctness by the opposite party. The Court therefore in administering the trust ought not to have rejected a valid