Duncan research files of
Forsyth Co. GA Deed (FHL film 329,951)
H-372: Butts Co. GA, 1 May 1846, James (X) Duncan of State of AL to Jos. Goddard of St. & Co. 1st written, $80, lot #505 in 2nd Dist. 1st Sec., 40 acres (deed later has warrant by said "Joseph" Duncan); wit. J.W. Lumsden, John L. Barnett.
Jasper Co. GA Deed (FHL film 158,501)
D-268: 21 April 1845, James (X) Duncan of Russell Co. AL to Martin Faulkner of Jasper Co. GA, $300, 101-1/4 acres, NW 1/2 lot 152, known as the Gilcoat lot, adj. lands of said James Duncan & Martin Faulkner and others. Wit. Ephraim E. Teller, Abba Benton, William P. Hardy. Rec. on oath of Hardy.
Muscogee Co. GA Deeds (FHL film 421,436)
N-634: Russell Co. AL, 2 Jan. 1868, W.P. Duncan of Russell Co. AL to Andrew J. Putnam of same, $800, part of lot #189 on E. side of Warren St. in City of Columbus; /s/ W.P. Duncan, S.M. Duncan; wit. Elizah (X) Phillips, J.M. (X) Price. (MAD: Wm. P. Duncan mar. Adaline Hackney 2/21/1858 Muscogee Co. GA; William P. Duncan mar. Susan Miller 5/30/1860 Autauga Co. AL; 1860 Autauga Co. AL census with children b.1855 and 1858; children of Steven Duncan in 1850 Campbell Co. GA)
N-717: Muscogee Co. GA, 2 Jan. 1868, John Duncan and Henry Voight of Muscogee Co. GA to W.P. Duncan of Russell Co. AL, $400, part of lot #189 in city of Columbus on E.side Warren Street; wit. Thos. J. Wynn, W.F. Edwards, Michael McCahey. (MAD: no release by wives)
Chambers Co. AL Deed (FHL film 1,854,662)
7-427: Russell Co. AL, 31 Oct. 1845, per Chancery Court May 1845, George Hargraves Sr. vs. Bank of Columbus and George Hargraves Jr., NE 1/4 Sec.31 Twp.20 R27 (creditors of bank) and SE 1/4 Sec.31 Twp.20 R27; Bryant Duncan, Register of said Court; Chancery Court, 14th Dist., Middle Chancery Division. (MAD: one Little Bryant Duncan b.1823 GA in 1860 Tallapoosa Co. AL census)
Macon Co. AL Deeds
D-430: 31 Oct. 1845, at regular term of Chancery Court for 14th Dist. Middle Division of AL, begun 1st Monday May 1845, a decree was rendered and judgment given in the case of George Hargrove Senr. complainant and Bank of Columbus and George Hargroves Jr. respondents, to benefit creditors of said bank, to sell land in Macon Co. AL, being NW 1/4 Sec.24 Tw[/19 R26 (for $160), SW 1/4 Sec.24 Twp.19 R26 ($10), NE 1/4 Sec.13 Twp.19 R26 ($15), NW 1/4 Sec.13 Twp.19 R26 ($15), NE 1/4 Sec.1 Twp.18 R26 ($30) and SE 1/4 Sec.1 Twp.18 R26 ($30); sold by me as Register of said Court on 8 Aug. 1845 to James H. Shorter and George Hargrove Jr. for total $160 (MAD: amounts given for each parcel), /s/ Bryant Duncan Register, appeared Russell Co. AL. (FHL film 1,293,643)
G-504: 22 July 1850, Bryant Duncan, admin. of Jonathan A. Hudson, Russell Co. AL; that Hudson had given bond in 1839 to make title to land, now Bryant Duncan as his admin. makes title ... (indexed "to R. Mitchell exor") (FHL film 1,293,645)
I-444: 9 Nov. 1853, Bryant Duncan of Russell Co. AL, admin. of Jonathan A. Hudson ... (indexed "to E. Williams") (FHL film 1,293,646)
J-8: 7 Oct. 1854, Jesse Wilkerson, admin. of estate of Arthur B. Davis, per court order Russell Co., sold to highest bidder Bryant Duncan; separate sums listed, about $2-$3 each; Sec.31, Sec.32, NE 1/4 Sec.33, SE 1/4 Sec.33, E 1/2 NW 1/4 Sec.33, E 1/2 SW 1/4 Sec.33, W 1/2 SW 1/4 Sec.40, W 1/2 SW 1/4 Sec.14, SE 1/4 Sec.5, NW 1/4 Sec.5, W 1/2 NE 1/4 Sec.5, all Twp.14 R26; and NE 1/4 Sec.28 Twp.19 R26. (FHL film 1,293,646)
K-426: Russell Co. AL, 8 Jan. 1857, Bryant Duncan admin. of Jacob A. Lewis decd; that on 29 Sept. 1856 the Probate court of Russell Co. AL ordered sale of real estate, Sec.34, Sec.33, and S 1/2 Sec.27, all Twp.15 R22E, in Tallapoosa Land District in Macon Co. AL, for a division among the heirs, ... (more not copied) ... sold to Leory Napier; rec. Dec. 14, 1857. (FHL film 1,293,647)
M-66/7: Russell Co. AL documents copied; Bryant Duncan, Register and Master in Chancery for 14th Dist. of Middle Division; suit filed April 12, 1851, by Benjamin H. Zaker trustee for Sarah Jane Sledge and other trustees; ... copy of documents certified by Wilson Williams, Register for 11th Dist. Russell Co., Southern Chancery Division formerly 14th Dist. Middle Chancery Division of AL, 19 Jan. 1964 ... (much more not copied) (FHL film 1,293,649)
Tallapoosa Co. AL Deed (FHL film 1,304,520)
D-424: Russell Co. AL, 31 Oct. 1845, Bryant Duncan Register, per decree in Chancery Court, sold land to highest bidder (not copied)
"Reports of cases at law and in chancery argued and determined in the Supreme Court of Arkansas, containing cases decided at the December term 1871, June term 1872, and December term 1872" by Norval W. Cox, Vol.XXVII; Arkansas Reports, Vol.27, pgs.190 to 200 (California State Law Library, Sacramento, 2/2004)
SHELTON v. LEWIS et al; Supreme Court of Arkansas; 27 Ark. 190; December, 1871, Decided.
Appeal from Crittenden Circuit Court.
COUNSEL: O. P. Lyles, for Appellant. The question in this case is, as to the rights of prior and subsequent incumbrancers to have satisfaction out of the land, according to their priorities.
The rule of law which governs this question is laid down in the following authorities: (MAD: not included here)
However numerous the encumbrances created on the land, in the nature of mortgages, they leave still in the mortgagor the ultimate equity of redemption, by which he may disencumber the mortgaged premises, and revest himself with the legal estate.
In the eye of a court of equity the mortgagor, until a decree of foreclosure, continues the real owner of the estate. The equity of redemption is considered to be the real and beneficial estate, tantamount to the fee at law.
The mortgagor, so long as he has an equity of redemption, has an estate which he may convey in mortgage by successive deeds, which will take precedence, according to their order in time, provided the subsequent mortgagee had notice of the prior ones.
The Lewis heirs being then the mortgagees in place of Hopkins, and holding, as such, the legal title as security for the purchase money they have paid, and Asa Shelton occupying the shoes of Duncan holding the equitable interest in the land, it must be sold to pay the Lewis heirs their debt, and Mr. Shelton takes the residue of the, proceeds as the second encumbrancer, by virtue of his deed of trust.
The Lewis heirs having been in possession of the premises, at an agreed amount of rent, must account for the rents as mortgagees, because they cannot make a profit to themselves.
Watkins & Rose and B. C. Brown, for Appellees. It is only because a mortgagee is considered as a purchaser, sub modo, that he ever receives protection.
That his trust being taken as a mere security for a pre-existing debt -- he is not entitled to protection against the equities of complainants is definitely settled.
But Shelton was not a purchaser. He was a mere volunteer, taking a mortgage for a pre-existing debt. As such he stood in the same position as Duncan, the mortgagor; he only had a lien on such interest as he had, and no more. All the authorities show this. The doctrine of purchaser for a valuable consideration without notice does not apply between equities.
[opinion] W. I. WARWICK, Special J. -- In this case there appears to have been a multitude of original and cross bills, answers, exceptions, etc., and much testimony, and inasmuch as we concur in the findings of the court below, we give them here as statements of this case, viz:
"Complainants, Edward B. Lewis, Phoebe and Eliza F. Lewis are, and were at the commencement of this suit, the sole remaining heirs at law of Jacob A. Lewis, deceased; that as such they and their late brother, Pearce A. Lewis, and their late sister, inherited a considerable estate, in money and slaves, from their said father and their grandfather Lewis; that the said Jacob A. Lewis, at the time of his death, left also surviving him, his widow, Mary B. Lewis, who afterwards intermarried with one Bryant Duncan, and soon after died, leaving all of the said children of the said Jacob A. infants, under the age of twenty-one years; that Bryant Duncan became and was by the proper court of Probate of Russell county, Alabama, where they then resided, appointed guardian of and for all of said children of said Jacob A., and continued so to be and to account as such with said court up to, and in the month of March, when he made a final settlement with said court, having in his hands as such guardian of said heirs of the said Jacob A. Lewis, near twenty-five thousand dollars and a number of slaves; that in the early part of the year 1859, the said heirs being yet infants, the said Bryant Duncan removed with them and their property to Crittenden county, Arkansas, and there continued to reside with them until the time of his death; that prior to the commencement of this suit, the said Pearce A. and Mary L. Lewis departed this life, being then infants, not having been married or leaving any issue, and subsequent to the death of their said mother, Mary B.; that on the 27th day of November, A. D. 1858, the said Bryant Duncan purchased from John W. Hopkins the following described lands, lying and being situate in the county of Crittenden, to-wit: etc., etc. * * * * * for the sum and price of twelve thousand dollars, payable, one third on the first day of January, 1859, and one third in twelve months, and one third in twenty-four months from the day of said sale; that the purchase of said lands was made by said Duncan for the said heirs of the said Jacob A. Lewis; that said Duncan took the bond for title to said lands, to be made by said Hopkins, upon payment of the purchase money, to himself; that said Duncan paid to said Hopkins the first payment for said lands, of four thousand dollars; that afterwards, Coleman Boyd, and Tandy H. Trice became, by assignment, the owners of the two notes of said Duncan, given for the other payments of the purchase money of said lands, to whom the said Duncan also paid, as part of the purchase money, the further sum of $3,326.60; that said sum, so paid by said Duncan, of the purchase money for said lands, amounting together to the sum of $7,376.44, was with and out of the moneys of the said heirs of the said Jacob A. Lewis; that said Bryant Duncan, after the notes so given by said Duncan to said Hopkins, for so much of the purchase money of said lands, had come, by assignment, to said Boyd and Trice, and further to secure the payment thereof, to-wit: on the 7th day of March, 1860, the said Duncan, by his deed of that date, duly acknowledged, purported to convey to William C. Trice, all of said lands, in trust for the said purpose that the said Coleman Boyd & Co., on the first day of September, 1865, and to the November term of this court, 1865, filed their bill of complaint against Edward B. Lewis, as the administrator of the estate of Bryant Duncan, deceased, and the unknown heirs of the said Duncan, to enforce a vendor's lien upon said lands, accruing to them as the assignees of said two notes; that said Duncan, on or about the 4th day of February, 1864, departed this life intestate, and the said Edward B. Lewis became his administrator by appointment; that in said suit, so instituted by said Boyd & Co., said Edward B., Phoebe L. and Eliza F. Lewis, were admitted as parties, defendants, and therein filed their cross bill against said Boyd & Co., John W. Hopkins, and the heirs at law of said Duncan, setting up their claim to said lands, upon the ground that so far as paid for, had been paid for, by said Duncan, with their means and money and, in fact, been purchased for them, and praying that they be permitted to pay the residue of said purchase money and interest, actually due upon said lands, and the said John W. Hopkins required to make deed to them for the same, and that all claims of the heirs of said Duncan be divested out of them and vested in said complainants in said cross bill; that James Tappan was appointed administrator of the estate of said Duncan, in and for the purposes of said principal and cross suits; that in said suit, upon the original bill, it was by this court decreed that the said complainants in said cross bill, should pay to said Boyd & Co. the residue of said purchase money, and interest thereon, amounting to the sum of eight thousand five hundred and forty dollars; that upon the payment of the same, they should be and were subrogated to all their rights and benefit of lien for said purchase money, of and upon said lands, then held by said Boyd & Co.; that said complainants in said cross bill, did actually pay to said Boyd & Co., the said sum of $8,540.00; that upon said cross bill, it was decreed, by the court, that all or any right, title or claim of the heirs at law of the said Bryant Duncan, in and to said lands, be and the same were thereby divested out of them and vested in complainants, Edward B., Phoebe L. and Eliza F. Lewis; and it was further thereby, by the court, decreed that the said John W. Hopkins should make conveyance of said lands to complainants; that afterwards, on the 8th day of December, 1866, the said John W. Hopkins, and his wife Elizabeth Hopkins, by their deed of that date, duly executed and afterwards recorded, did convey the said lands, by proper and appropriate description, to the said Edward B., Phoebe L. and Eliza F. Lewis. And the court doth further find that the said Bryant Duncan, being then and theretofore indebted to the said defendant, Asa Shelton, by promissory note, of date April the 7th, 1861, in the sum of eight thousand seven hundred and twenty-six dollars, and sixty-four cents, on the 10th day of April, 1861, by his deed of that date, commonly called a deed of trust, and afterwards duly acknowledged and recorded, purported to convey a part of the same lands to the defendant Paul Jones, in trust, to secure the payment of the said sum so due to the said Shelton, was contracted and due by the said Duncan prior to the execution of said trust deed to said Jones, and the said deed was executed to secure the payment of the same, and that said debt has not been paid in whole or in part."
The foregoing are the conclusions of fact, which the court below found, and which, on review, we find to be substantially correct.
Thereupon the court below rendered the following decree, viz: "It is therefore ordered, adjudged and decreed, by the court, that the said deed of trust, of date the 10th day of April, 1861, executed by the said Bryant Duncan, to the defendant, Paul Jones, to secure the said debt due to Asa Shelton, by said Duncan, purporting to convey the said lands hereinbefore recited, be and the same is hereby cancelled and annulled, and shall be forever held for naught, and the said Paul Jones and Asa Shelton, and all and every their heirs, assigns, agents or attorneys are, and every of them perpetually restrained, enjoined, and inhibited from, in any way, executing, or attempting to execute the provisions of said deed against said complainants, their heirs or assigns." From this decree Asa Shelton appealed.
If the facts are correctly found, by the court below, the principles of law, applicable to them, are too well settled to require any discussion. It is objected by the appellant, that the certificate or authentication to the transcript of the proceedings had, in the Probate Court of Russell county, Alabama, is not in due form, in that it does not conform to the act of Congress of 29th May, 1790. The certificate is signed by "T. L. Appleby, Judge of Probate," and authenticated by the seal of his office, and after reciting that the transcript is a true, correct and perfect transcript of all the records, recites that he is the "Judge of said Probate Court, duly commissioned and qualified; that I am ex-officio clerk of said court, and the keeper of the records and seal thereof; that said court is a court of record, and this attestation is in due form." According to the rule laid down in Catlin vs. Underhill, 4 McLean 199, we deem it sufficiently authenticated. This transcript shows that Duncan had been appointed guardian of the appellees, and that on his last settlement with that court, a large amount of money was in his hands, as such guardian. It is established by other testimony that, at the time of the marriage between Duncan and the mother of the appellees, and when appointed their guardian, he (Duncan) was a man of no property whatever, and insolvent. It is equally well settled by testimony that, when Duncan removed to Arkansas, he had no property or money, save such as remained of the estate of his said wards, and that he brought to Arkansas the identical negroes that belonged to the estate of Jacob A. Lewis. From the record, there can be no doubt that whatever of money was paid by Duncan on the lands, was paid out of money belonging to his wards. There is much proof of statements made by Duncan, in his lifetime, that he bought the lands for his wards, but, in our view, if he used the money, they are equally entitled to the results of the purchase, whether he purchased for himself or them, and this would be true, if he had their money merely as agent, and not guardian. The rule is, that where one holds money of another, in any fiduciary character, and invests it in the purchase of land, taking the conveyance to himself, the person entitled to the money, may, at his election, charge the trustee personally, or follow the money into the land and claim the purchase as made in trust for him, and he may establish such trust by parol evidence. The proof, in such case, must be full, clear and conclusive, and such we deem it to be in this case. Duncan, when he purchased, obtained only an equitable title, viz: bond for title; and this, together with the possession of the premises, he held in trust for his wards, the appellees, and the purchase money not all being paid, they had an absolute right, on establishing their equity, to pay the residue and procure the legal title; for payment of part of the purchase money will create a trust to the extent of that payment.
It is insisted, in behalf of appellants, that the deed of trust by Duncan to Jones, to secure the indebtedness due Shelton, was made without notice to either Jones or Shelton, of the equities of the appellees, and hence, they are entitled to relief. It must be borne in mind that Duncan himself had only an equitable title, and of this Jones and Shelton were bound to take notice, and hence, he could only convey an equity to Jones and Shelton, which equity was subsequent to that of the appellees. There is no principle better settled, in courts of equity, than, that where both parties claim by an equitable title, the one who is prior in time, is deemed the better in right. The purchaser of an equitable title holds it subject to the equities upon it in the hands of the vendor, and has no better standing in a court of equity.
In the case of Petigrew vs. Turner, 25 Tenn. 438, 6 Hum. 438, and re-affirmed in Brown vs. Vanlier, 26 Tenn. 239, 7 Hum. 239, the court held, "that the right of wards to property purchased with their money, might be sustained against a conveyance in trust, to secure bona fide debtors, notwithstanding such trustee and cestui que trust were ignorant of their existing equity, at the time of the conveyance." It is conceded, by appellants, that "this is not a case in which the question of bona fide purchaser, for a valuable consideration without notice arises on this record," and insists that it is solely a question as to the rights of prior and subsequent incumbrancres to have satisfaction, out of the land, according to their privities.
In this connection, appellants insist that, at the time appellees procured the deed and legal title from Hopkins, they had notice of the equities of appellant, and that they cannot now avail themselves of the legal title against Shelton, and that Shelton stands before the court as second incumbrancer; that they hold the legal title in trust for Shelton, and that they have only a first lien for the residue of the purchase money paid out by them.
We do not so understand the law. It is true, that by decree of the court below, the Lewis heirs were directed to pay the residue of the purchase money to Boyd & Co., and were subrogated to the lien of Boyd & Co., and in this, we do not concede the decree correct, for the Lewis heirs, having the prior equity, and the result of the purchase from Hopkins by Duncan, being for their benefit, when they paid the residue of the purchase money, they could not be subrogated to any lien, because they, by that judgment, extinguished the lien for the purchase money of the land, on their own property. Suppose Duncan had, in his lifetime, paid the entire purchase money of the lands, out of the means of his wards, it could not be contended that when they obtained the legal title, in support of their prior equity, they or the land were bound to discharge subsequent equities. To hold that because they themselves paid the residue of the purchase money, they hold the legal title, in favor of subsequent equities, would place them in a worse condition than if they had paid nothing. We understand the rule to be, that as between prior and subsequent equities to land, where either obtain the legal title, if the legal title be good, equity, which follows the law will not interpose to take it away from him, unless there is something unjust or unconscientious in his mode of obtaining it.
In 2d Equity Leading Cases, 73, it is said to be "plain that the favor shown by equity to purchasers for value, only extends to those who acquire a legal title to the thing purchased, or who buy under the belief that they are acquiring the legal title, and that the purchaser of an equity, who knows or has the means of knowing the nature of his purchase, must submit to the general rule under which the title of a vendee is measured, and limited to that of the vendor."
So, in this case, Shelton and Jones had ample means of ascertaining the title of Duncan, for an examination of the records of Crittenden county, at the time of the execution of the deed of trust, from Duncan to Jones, for Shelton's benefit, would have disclosed the character of Duncan's title, and that, at best, he could convey only the equity of an equity. That it was inconvenient for appellant to make such examination is no sufficient excuse, and he must suffer the penalty for his want of diligence.
Quoting again from 2d Equity, Leading Cases, 72, "the purchaser of an equitable estate or interest must stand or fall, in equity, by the estate of the seller, and can not rely upon bona fides, and the expenditure of money as a ground for protection against a prior or better right or equity. His con-conscience may be clear, but he is presumed to have bought with full knowledge of the rule, which throws the risk of a purchase on the purchaser, and must submit to the consequences of his ill fortune, or want of due care and diligence."
Finding no substantial error in the record of the court below, the decree, of that court, is in all things affirmed.
"Reports of cases argued and determined in the Supreme Court of Alabama during December term 1876" by Thomas G. Jones, Vol.LVI; Alabama Reports, Vol.56, pgs.486 to 493 (California State Law Library, Sacramento, 2/2004)
GRIFFIN v. PRINGLE; Supreme Court of Alabama; 56 Ala. 486; December, 1876, Decided.
Appeal from the Chancery Court of Lee. Heard before the Hon. N. S. Graham.
The original bill in this case was filed on the 11th June, 1874, by Andrew B. Griffin, against the heirs at law and distributees of the estate of James Pringle, deceased, who died in Russell county (in that portion now embraced in Lee county), in 1854; and whose last will and testament, which was there duly proved and admitted to probate, was in these words: "As to such worldly estate as it hath pleased God to bless me with in this life, I give, devise, and bequeath, unto my beloved wife and son, George Pringle, all my real and personal estate, such as land and negroes, stock of all kinds, hogs, cows, horses, mules, and all the plantation tools, for to support them during their natural lives; and immediately after my decease, it is also my desire that my son, Alexander Pringle, take the management and control of the negroes and plantation, for his mother, and brothers, and sisters; and it is also my desire that Sarah K. Pringle, Nancy A. Pringle, and Mary E. Pringle have their support. It is my desire, also, that Thomas W. Pringle work with his brother, Alexander Pringle, in helping to make a support for the family, and to assist him in paying the debts of the estate. I also constitute, nominate, and appoint Alexander Pringle and John G. Pringle, as my executors."
The bill contained only six paragraphs, in which the following facts were alleged: 1. The death of said James Pringle, and the probate of his last will and testament, a copy of which was made an exhibit. 2. That John G. Pringle, one of the persons named in the will as executors, was a nonresident; that Alexander Pringle alone qualified as executor, and, in the execution of the powers conferred by the will, "carried on farming operations on the testator's lands, and thereby made and provided a support and maintenance for the testator's family, as provided by said will, and thereby and therefor contracted the following debts," specifying the names of the creditors and the amounts of their respective debts; "all of which were articles for the support of the family, and to carry on the said farming operations, and constitute a valid charge on said testator's estate, but for which the estate of said Alexander Pringle is liable." 3. That the testator's estate consisted of certain lands, which were particularly described. 4. That Alexander Pringle died in 1872, not having fully executed said will, and the administration of said estate having been removed to Lee county; and that the complainant was duly appointed administrator of his estate, and also administrator de bonis non, with the will annexed, of said James Pringle, by the Probate Court of Lee county. 5. That the widow of said testator, and his son George, had both departed this life, the time of their respective deaths not being stated; and that the heirs and distributees of said testator's estate are: "John G. Pringle, over twenty-one years old, residing in Savannah, Chatham county, Georgia; Sarah K. Pringle, Nancy A. Pringle, and Mary Pringle, all over twenty-one years of age, and all residing in said county of Lee; Thomas G. Pringle, of unsound mind, over twenty-one years old, and residing in Lee county; and Avarilla Duncan, John A. Duncan, George W. Duncan, and Camilla Duncan, all over twenty-one years old, and residing in Cass county, Texas, post-office unknown." 6. The prayer of the bill was, that the court would, "on final hearing, declare that said debts constitute a valid lien and charge upon the said testator's estate, mentioned in the third paragraph of this bill, and the same be sold, and the said debts be paid and satisfied; and send an order to the Hon. Wilson Williams, the probate judge of said county, directing him to send all the papers pertaining to said testator's estate to this honorable court, there to be further and fully administered; and for other and further relief," &c.
A joint answer to the bill was filed by Sarah, Nancy, and Mary Pringle, in which was incorporated a demurrer, assigning the following grounds: "1st, that said bill has no equity; 2d, that it shows no right in the plaintiff to sue for a sale of the lands of James Pringle's estate; 3d, that it shows no right in Alexander Pringle to charge the said lands; 4th, that it states no facts showing that he did so, or endeavored to do so; 5th, that no account is rendered between said Alexander and the estate said to be in his charge, so as to enable the court to strike a balance between him and the trust estate; 6th, that the bill does not show the character in which the plaintiff sues."
An amended bill was afterwards filed, alleging "that said Alexander Pringle, in executing said trust, expended a large sum of money, which is a proper charge on said estate; that said expenditure was reasonable, just, and necessary for the execution of said trust; that said Alexander Pringle devoted his personal services and time to the execution of said trust, for eighteen years; that said services constitute a valid charge on said trust estate, and are reasonably worth the sum of $2,500; and that complainant, as administrator of said Alexander Pringle, or James Pringle, deceased, has no effects whereby to repay said expenditures, and to pay for said services." The amended bill prayed, "in addition to the relief hereintofore prayed," that the court would "declare that said expenditures and charges for personal services constitute a valid charge on said estate; that a reference be had with the register, as master, to determine and report what sum said Alexander Pringle did so expend in the execution of said trust, and what sum his said personal services to said trust estate are justly worth."
The said Sarah, Nancy, and Mary Pringle, answering the amended bill, demurred to it, on the ground of a variance and inconsistency between it and the original bill; and to the bills original and amended, on the grounds of multifariousness, uncertainty as to the character in which the plaintiff sued, lapse of time and staleness of the demand, and want of equity. The chancellor sustained the demurrer, and dismissed the bill, for want of equity; and his decree is now assigned as error.
[opinion] STONE, J. -- James Pringle died, testate, in 1854. He left surviving him a widow, and the following children: John G., Alexander, Thomas W., George, Sarah K., Nancy A., and Mary Pringle; also, probably, another daughter, or children of a daughter, named Duncan. The will is an anomaly. The property consisted of lands, slaves, stock, plantation implements, and, doubtless, household furniture. The language of the will is: "I give, devise, and bequeath, unto my beloved wife and son, George Pringle, all my real and personal estate, to support them during their natural lives; and immediate after my decease, it is also my desire that my son, Alexander Pringle, take the management and control of the negroes and plantation, for his mother, and brothers, and sisters; and it is also my desire that Sarah K. Pringle, Nancy A. Pringle, and Mary E. Pringle, have their support. It is also my desire that Thomas W. Pringle work with his brother, Alexander Pringle, in helping to make a support for the family, and to assist him in paying the debts of the estate. I also constitute, nominate, and appoint Alexander Pringle and John G. Pringle, my executors." Alexander Pringle alone qualified, and took upon himself the trust.
1. In construing a will, it is our duty to consult the whole will, and give effect to the expressed intention of the testator, when we can gather it, and such intention does not violate any rule of law. Clauses apparently conflicting must be harmonized, if possible; and if they cannot be harmonized, then the later clause will prevail over the earlier, as being the latest expression of the testator's will; and a general intent will prevail over a particular intent, if irreconcilably repugnant to it.
2. The proper construction of the will before us is no easy task. Part of it is devoted to bequests that are beneficial; while, so far as Alexander and Thomas W. Pringle are concerned, it imposes only burdens. Whether they are to share in the income of the property is no where expressed. We have no hesitation in saying, that a life-estate in the title to all the property was thereby vested in the widow and George Pringle, while the management and control of the negroes and plantation were put in the hands of Alexander Pringle. This is said to be "for his mother, brothers, and sisters." What is meant by this, it is difficult to say. It probably depends on the then condition of his family; to what extent scattered and provided for, and constituting a part of his family. The next clause rather confuses, than sheds any light on this. It directs that the three daughters, Sarah K., Nancy A., and Mary E. Pringle have their support; evidently out of the property, or its income: the latter, if sufficient. To go beyond the latter, would trench on the life-estate to the widow and his son George; therefore, we hold that it must come out of the income. This is made a charge on the life-estate.
But a difficulty arises here. These three females are sisters of Alexander Pringle, and are embraced in the trust confided to him, to manage and control the property "for his mother, brothers, and sisters." To what extent for them? If for their present support, then there was no use for the later expression, that they were to have their support; and, in this connection, it becomes material to inquire, what are the meaning and object of the testator, when he directs that, immediately after his decease, "Alexander Pringle take the management and control [of the property] for his mother, and brothers, and sisters?" In the absence of averment of the then residence of the different members of the family, we are not able to reconcile and give operation to the several clauses of the will. We do not hesitate to declare, that the support of the three named females was made a charge on the life-estate, being the usufruct of the property, which the will gives to the widow and George Pringle. We hold, further, that the will only disposes of a life-estate to the widow and George, who, under our statute, must be held to have taken as tenants in common. The reversion of the entire estate was left undisposed of, and, as to that, the testator died intestate. And we hold, too, that the trust to manage and control, confided to Alexander under the will, continued only during the life-estate; and that, after that, he was remitted to his powers as executor only.
3. The bill avers, that Alexander Pringle entered upon, and discharged the duty of managing and controlling the estate; and there is nothing in the bill tending to show that he did not do it faithfully. We judicially know, as a matter of public history, that slaves were emancipated by the close of the war, in 1865. Mr. Pringle's estate consisted of a plantation and slaves. The chances of working the plantation successfully and profitably were materially diminished by that event. The will shows that the testator, at the time of his death, owed debts, but their amounts are not shown. Under these circumstances, and in the troubles incident to the war and its results, it is not surprising that the managing trustee, with the purest intentions and strictest economy, would sometimes find it necessary to incur liabilities in the execution of the trust, and to save the trust property. The law does not exact infallibility from a trustee, nor hold him accountable for errors of judgment, if he act in good faith. Men of ordinary prudence, many of them, fell into serious errors, and suffered grievous losses, in their early experiments with freed laborers. It was Alexander Pringle's duty to manage and control the property; and the law exacted from him only integrity of purpose, and that degree of diligence which an ordinarily prudent man bestows about his own affairs. Bringing to the service this good faith, and this measure of diligence, the law does not hold him accountable for his misadventures.
4. In Alabama, and generally in the United States, trustees are entitled to reasonable compensation for their services and risks.
5. In the present bill, it is not shown when Mrs. Pringle and George Pringle died; and hence we cannot tell when the special trust to manage and control ceased. There are many other defects in the bill, among which we mention a failure to set forth, either generally or specially, how Alexander Pringle administered the trust, or accounted for the income; whether the debts described in the bill were contracted before or after the termination of the life-estate, and the necessity or reason for contracting them, and on what consideration. There is no averment, negativing the receipt and use by Alexander of the income of the estate, or some part thereof, as compensation to himself; and no account rendered, or denial of liability to account, so as to show the trust fund in fact owes said Alexander's estate. Nor is there any averment, or prayer, offering to settle said Alexander's executorship or trust, or praying, for that purpose, to transfer the settlement to the Chancery Court, the only court having jurisdiction to make the settlement between the two estates, of each of which the same person is administrator.
What we have said above is in great ignorance of the real merits of the present controversy. We have only considered the bill, and amended bill, as they and the demurrers are all of the pleadings that are properly before us. It may be that this family lived and labored together for their common support and benefit, with no thought or intention, on the part of any member thereof, to make a charge for the same. The very long period such a relation appears to have been kept up, gives, at least, plausibility to this theory. If such was the case, no allowance for such services should be made. We do not affirm there is a liability for the other debts, those set forth in the original bill. The averments of the bill, as we have shown, are too meagre to justify us in hazarding an opinion.
The bill is fatally defective, and the chancellor did not err in dismissing it; but, inasmuch as it is possible the complainant may be entitled to some relief, we will so modify the decree as to make it a dismissal without prejudice.
Affirmed, and bill dismissed without prejudice.
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