Slingluff v. Hubner

Jones, J., delivered the opinion of the Court. This case arose as follows: Mrs. Frances E. Slingluff died in 1890 leaving a will by which she gave and devised to her two ⁶⁵³ sons, Fielder C. and Frank Slingluff, and her son-in-law, Joseph Hunter, certain real estate therein described to hold the same in trust—“To sell, lease, mortgage, manage and develop the same'as in their judgment may seem best to the interests of my estate and for this purpose I give them full and absolute power to execute any and all conveyances that may be necessary for such purposes, to sign all petitions for opening roads or streets, or to make any improvements whatsoever and generally to manage said property for the purposes aforesaid, in the same manner as I could do, if living, and I hereby release any and all persons who may deal with them for the above purposes, from all responsibility for the proper application of any moneys received by them and in case of any sales or other disposition of said lands, or any portions thereof, I direct my said trustees to divide the proceeds of same into seven equal portions, and to pay the same to my said children, or the descendants thereof, and the trustees for such shares as I have named trustees, as is provided in this my will.” The son-in-law, Joseph Hunter, renounced the trust. The two sons accepted the same and having petitioned the Circuit Court to take jurisdiction thereof proceeded with the execution of the trust under the direction of that Court. The testatrix left seven children including the two sons named as trustees.

In 1900 both of the trustees, who accepted the trust, applied for the benefit of the United States Bankrupt Act. Frank Slingluff on the 20th day of June and Fielder C. on the 10th of August. The former was adjudicated a bankrupt on the 2nd of July and received his discharge on the 31st of August next following his application. The latter was adjudicated a bankrupt on the 1 5th of August and obtained his discharge on the 8th of December next following his application.

John Hubner was named as assignee in bankruptcy in each case; and by an order of Court passed in the proceedings in the trust estate, on his application, on the 28th of December, 1900, he was made a party, in that capacity, to these proceedings. On the 29th of March, 1901, an auditor’s account was filed ⁶⁵⁴ therein which made to the trustees an allowance of commissions to the amount of $8,539.45 on sales and collections shown thereby. To this account Hubner assignee filed exceptions and asked that it be rejected, assigning among others, as reasons therefor that the commissions allowed the trustees were unusual and excessive; and that commissions had been allowed on “improper amounts”—some of which were specified. On the 3rd day of October, 1902, this account of the auditor was finally ratified and confirmed and the order directed “that the trustees apply the proceeds accordingly with a due proportion of interest as the same has been or may be received.” On the twenty-fifth day of January, 1904, there was stated another auditor’s account in which allowances were made in lieu of potential right of dower to the wives of Fielder C. and Frank Slingluff out of their distributive shares, &c., shown by the account; and an allowance of commissions to the amount of $2,142.16 on sales and collections reported.

With the account was a “statement of advances made to the different legatees of the testatrix, by the trustees” which showed some overpaid and the amounts due to others who had not received their full shares of what was reported for distribution. In this statement Frank Slingluff was credited wjth $13,208.59 his distributive share as shown in the previous account ratified on the 3rd of October, 1902, and with $4,269. 72, one-half of the commissions allowed by that account making $17,478.31, and was charged payments made to him $10,438.30, and the one-half commissions paid to him, $4,269.72, making $14,708.02, and leaving a balance of $2,770.29, audited as payable to his assignee in bankruptcy. The assignee in bankruptcy, Mr. Hubner, filed exceptions to this account alleging as the grounds thereof the allowances to the wives of the two trustees in lieu of potential right of dower; and “Because the auditor has allowed the trustees herein the sums of $10,438.30 and $4,601.90 as paid Frank Slingluff on account before his bankruptcy, whereas the testimony taken before the auditor and the books of the trustees show that only $10,438.30 was paid to him; and the balance, ⁶⁵⁵ towit, $4,601.go, should therefore have been audited and allowed to John Hubner, trustee in bankruptcy of Frank Slingluff.” On the 7th of April, 1904, the Court passed an order which recited “The various exceptions to the auditor’s account filed in the above-entitled cause having come on to be heard, the same were argued by counsel, and by the Court duly considered, it is therefore this 7th day of April, 1904, adjudged and ordered as follows. “First, that the wives to whom allowances in lieu of dower had been made were not entitled to the same; that as to commissions allowed to Frank Slingluff “in so far as they relate to sales and collections made” by the trustees, “prior to the filing of the petition in bankruptcy against the said Frank Slingluff, and as to which orders of this Court were passed allowing said commissions prior to said petition in bankruptcy, be, * * * sustained and the amount thereof is therefore ordered to be audited to the trustee in bankruptcy of said Frank Slingluff—in so far as they relate to commissions upon sales and collections made by said * * trustees prior to said petition in bankruptcy, and as to which no order of this Court was passod allowing the same prior to said petition in bankruptcy, be * * overruled.” Then after ruling upon matters which appear to have been presented by exceptions filed by other parties in interest and reserving a question as to these “for the further consideration” of the Court the order concludes “and the auditor in restating his account in these proceedings shall do so in conformity with the terms of this order.” On the 14th of June, 1904, the auditor filed his account stated in conformity with the foregoing order. To this account Frank Slingluff filed exceptions because it allowed to his assignee in bankruptcy commissions that had been theretofore “audited and distributed” to him in the account of the 29th of March, 1901, and because it did not allow the amounts in lieu of potential right of dower which had been allowed in the previous account which was set aside.

Testimony was taken under these exceptions and it was in proof that Frank ⁶⁵⁶ Slingluff had never, prior to filing his petition in bankruptcy, drawn any of the sum allowed for commissions in the account of the 29th of March, 1901, but that since the ratification of that account and before the 7th of April, 1904, he had drawn all of his one-half of the commissions. On the 13th day of March, 1905, these last-mentioned exceptions were overruled “the Court being of opinion that the same” had “been disposed of by the order of the Court passed * * on the 7th day of April, 1904,” and the “auditor’s report and account” was “finally ratified and confirmed.” From this order the appeal which brings the case to this Court was taken by Frank Slingluff and Belle C. Slingluff, his wife, and Mary J. Slingluff, the wife of Fielder C. Exceptions were filed to the testimony of Frank Slingluff and without discussing these the testimony will, in considering the questions presented here, be laid out of the case. The first question arises on the motion to dismiss the appeal. The ground of this is that the order of'the 7th of April, 1904, is a final order and concludes the appellants upon the questions sought to be raised here and not having been appealed from within the time prescribed for taking appeals the appellants cannot be heard to question it now.

As said by Judge Buchanan in Thompson v. McKim, 6 Har. & John. 302, there is “much difficulty in drawing a precise line” between orders that are final in character and those that must be considered as only interlocutory; and “every case must in some measure depend upon its peculiar circumstances.” ' We do not think the order now in question is to be regarded here as a final order. It is not such an order as in the language of Judge Buchanan in the case just cited draws “after it the coercive process of the Court of Chancery.” No party in interest, by reason and force of that order, could get his or her money as distributed in the rejected audit without some further action by the Court; and could have no process to compel an execution of the order without first obtaining some further action to fix definitely and finally the rights to be enforced. In respect to the right of Frank Slingluff to com ⁶⁵⁷ missions it does nothing more than declare the principle upon which they are tobe allowed; or which is to guide the auditor in fixing what will be due to him and what to his assignee in bankruptcy. It evidently contemplated further action as to matters embraced in the audit because as to some of them a question was reserved for future consideration.

While the order was not final it was an appealable order as being directly within the terms of sec. 27, Art. 5, Code 1904, as “an order determining a question of