Mitchell v. Colburn

Robinson, J., delivered the opinion of the Court. The testatrix, Julia M. Colburn, bequeathed to her brother-in-law, Augustus W. Colburn, a conditional legacy of three thousand dollars, and after sundry, bequests to other persons, she devised all the rest of her property, in trust, the income thereof to be applied to the support and maintenance of her son, Paul S. Colburn, during’ his life, with remainder to his children, and in default of children, to certain devisees named in the will. The appellant was subsequently appointed trustee to administer the trust declared by the will. A controversy having arisen in regard to the payment of the legacy of three thousand dollars to Augustus W. Col-burn, a bill was filed by him against the appellant as trustee, to enforce its payment out of the trust fund.

After the case had been argued, and pending its decision, a compromise was made, whereby Augustus agreed to settle his claim to the legacy upon the payment of eleven hundred dollars. This compromise, his solicitors say, they were induced to make, because of an intimation by the Judge below adverse to the claim. ²⁴⁷ Having thus agreed upon a compromise upon the payment of $1100, an agreement was filed signed by Augustus through his solicitors, and by the appellant as trustee, and by Paul S. Colburn, one of the cestuis que trust, assenting to a decree in favor of Augustus for the payment of the entire legacy of three thousand dollars; and also to the passing of an order by the Court, directing the appellant, as trustee, to sell a water bond, part of the trust property, and any other property necessary to the payment of said legacy. Upon this agreement a decree was passed for the payment of the legacy of three thousand dollars, with interest thereon, and directing the trustee to sell the water bond and other property in his hands for this purpose. The water bond was thereupon sold, the sale realizing $1890, and out of the proceeds, the $1100 agreed upon was paid to Augustus Colburn, and his release therefor was executed.

After this settlement, and after the execution of the release, an amended bill was filed by the solicitors of Augustus, through whom the settlement was made, setting forth an insufficiency of the personal estate in the hands of the trustee to pay the legacy, and praying for a sale of a part of the real estate for this purpose. These allegations, the appellant, as trustee, not only admitted, but in his testimony says, “there is no personal property in his hands to pay the legacy. There was a five per cent, water bond of the City of Baltimore for eighteen hundred dollars, and that was all in my hands with which to pay this legacy; and the Court passed an order directing it to be paid, but it was insufficient by between fifteen and seventeen hundred dollars.” Thereupon, a further decree was passed authorizing the appellant to sell certain ground rents, and to apply the proceeds to the payment of what might be due on the legacy after the application thereto of the proceeds from ²⁴⁸ the sale of the water stock. Under this decree the ground rents were sold realizing $2100.

Although the amount paid to Augustus was only $1100, as agreed upon, the appellant took from him a release reciting the payment of $8360, and in his report of- sales states that he had paid $3360 on account of said legacy. An account was then stated by the auditor, in which he was allowed the usual commissions on the sales of the water stock and ground rents, and also $3360, the amount claimed to have been paid by him on the legacy. These are the undisputed facts in this case, and