Joseph Story

“ Then, was the sale to Veitch a breach of trust? The power given to the trustee by the settlement is certainly very broad and unusual in its terms; but it is not unlimited. The trustee had not an unrestricted authority to sell, but only when, in his opinion, the purchase money might be laid out advantageously for the cestuis que trust. It is true, the sale and reinvestment are to be decided by his opinion; which is an invisible operation of the mind. ”

“ A more liberal decree could not, in our opinion, be required by any reasonable view of the case.
An objection has been taken to the jurisdiction of the Court, upon the ground, that Wormley, the husband, is made a defendant, and so all the parties on each side of the cause are not citizens of different States, since he has the same citizenship as his wife and minor children. But Wormley is but a nominal defendant, joined for the sake of conformity in the bill, against whom no decree is sought. ”

“ Yet, it is unquestionable, that, thus stated, it presents a correct summary of the whole transaction, as made out in the evidence. It has, however, been put together so as to admit of distorted views; and such will ever be the case where men expose themselves to suspicion by mixing up their own interests with the interests of others placed under their protection. I can see nothing but liberality in the conduct of Strode towards Wormley, and little else than improvidence, caprice, and ingratitude in the conduct of the latter. ”

“ The answer itself of Castleman and M'Cormick, does not deny notice of these facts. It states, indeed, that they supposed the transaction with Veitch fair, because they were satisfied that the trustee never received more from Veitch than what he has given the cestuis que trust credit for. Was it a fair execution of the trust, so to sell the estate, and to give credit for the proceeds? To apply them to pay the trustee's debts, and relieve his necessities? To sell without any definite intention as to a reinvestment? They also deny all knowledge of fraud. ”

“ He has sold the trust property to pay his own debts. He has never applied the proceeds to any reinvestment. To this very hour there has been no just and fair application of the purchase money. The Fauquier lands are gone, the Kentucky lands have been rejected, and are loaded with liens; and there is nothing left but the personal responsibility of the trustee, embarrassed and distressed as he must be taken to be, unless the trusts are still fastened to the Frederick lands. ”

“ That there are circumstances in the case, which raise a presumption of bad faith on the part of the trustee, and expose him to some suspicion, cannot escape observation. But assuming him to have acted with entire good faith, his proceedings were a plain departure from his duty. In respect to the supposed exchange of the Fauquier for the Frederick lands, it is impossible for a moment to admit its validity. In the first place, it was not made between parties competent to make it. Wormley had no authority over the estate, after the marriage settlement. ”

“ The administrator of the deceased is, in the first place, entitled to his whole personal estate, in trust value, it appears, that the Frederick land, after being long hawked about for sale, and having 1000 dollars added to its value by Strode, in the extinction of the mother's life estate, sold for no more than 5500 dollars, a sum satisfactorily proved to be its full value at the time; whereas, the Fauquier land, after Wormley's refusal to take it, was sold for 8000 dollars. ”

“ And they ultimately took the general warranty of Veitch, upon releasing their claim on the Fauquier lands, as a security for its validity.
There is a still stronger view which may be taken of this subject. It is a settled rule in equity, that a purchaser without notice, to be entitled to protection, must not only be so at the time of the contract or conveyance, but at the time of the payment of the purchase money. The answer of Castleman and M'Cormick does not even allege any such want of notice. ”

“ The case is one in which, it is true, the conduct of the defendants is greatly exposed to misrepresentation and misconstruction; but when reduced to order, and examined, the circumstances admit of the most perfect reconciliation with the purest intentions. It is true, that Strode was in debt; that it was necessary to sell the Fauquier lands to satisfy his creditors; that the money arising from the Frederick land was applied to the payment of Strode's debts. But there was nothing iniquitous in all this. It is perfectly explained thus: The Fauquier land must be sold to pay Strode's debts ”

“ There, if the bill be in behalf of themselves only, it will not be sustained; but if it be in behalf of themselves, and all the rest of the crew, it will be sustained upon the manifest inconvenience of any other course; for it has been truly said, that no case can call more strongly for indulgence, than where a number of seamen have interests; for their situation at any period, how many were living at any given time, how many are dead, and who are entitled to representation, cannot be ascertained ”

“ Now, it is to be considered that the bill charges the defendants with trust property, personal as well as real, and prays an account, and payment of the plaintiff's distributive share of each. I do not say that the heir, or next of kin, cannot, in any case, proceed for a distributive share against a third person, having in his possession the personal assets of the ancestor, without making the personal representative a party ”

“ Gilbert, in his Forum Romanum, p. 157. states the rule, and illustrates it with great precision. 'If,' says he, 'it appears to the Court, that a very necessary party is wanting; that without him no regular decree can be made; as where a man seeks for an account of the profits or sale of a real estate, and it appears upon the pleadings, that the defendant is only tenant for life, and consequently the tenant in tail cannot be bound by the decree ”

“ Nevertheless, there are canons of the Court of equity which have their foundation, not in the actual commission of fraud, but in that hallowed orison, 'lead us not into temptation.'
On of these is, that a trustee shall not be permitted to mix up his own affairs with those of the cestui que trust. Those who have examined the workings of the human heart, well know, that in such cases, the party most likely to be imposed upon is the actor himself, if honest ”

“ Another class of cases is, were a few members of a voluntary society, or an unincorporated body of proprietors, have been permitted to sue in behalf of the whole, seeking relief, and an account against their own agents and committees. ”