Opinion
(August Term, 1856.)
Where a trustee is appointed for the purpose of protecting the trust property from the debts and extravagant expenditure of the cestui que trust, who is to have the use of it for his life, with a limitation over, and such trustee encourages extravagance and waste by lending the cestui que trust money, becoming his surety, and otherwise becoming his creditor, the Court will not lend him its aid to subject the trust property to the payment of such debts; especially where the trustee has already authority to sell for reasonable and proper expenditures.
CAUSE removed from the Court of Equity of Mecklenburg County.
No counsel appeared for the plaintiff in this Court.
Boyden for defendant.
The bill of the plaintiff alleges, that one Samuel Wilson died in the year 1843, having made and published his last will and testament, which was duly proved; that amongst other provisions in the said will, are the following:
"6. I give and bequeath unto Sidney X. Johnston and his heirs, the following property (mentioning particularly, lands, slaves, and other valuable property,) in trust for the use of my son Patrick J. Wilson, during his life, and at his death, to the use and benefit (492) of the lawful issue of the said P. J. Wilson; and should he die without lawful issue, then, and in that case, I will and bequeath said property to my surviving children and their issue, share and share alike. It is my will that all the property devised and bequeathed to the said Sidney X. Johnston be held by him for the trusts aforesaid; that in no event it be subject to the payment of my son's debts. The said Sidney X. Johnston is hereby authorized to permit the said P. J. Wilson to have the use of the said property and effects, in such way as he shall judge most expedient to effect my intentions towards him; and the said Sidney X. Johnston is also allowed to sell all, or any part, of the said property that he thinks proper, and hold the proceeds of the said sale upon the same trusts;" that Sidney X. Johnston renounced the trust mentioned in the said will, and that the plaintiff, by a decree of the Court of Equity, was substituted in his place, and that he undertook the execution of the same.
The bill asserts that the equitable interest of P. J. Wilson is not liable for the payment of his debts.
It is further alleged in the bill, that P. J. Wilson is a man of profligate habits — intemperate and extravagant; that he has held possession of all the property willed to S. X. Johnston for his use, since the death of his father; that he has squandered the proceeds, and in addition thereto, contracted numerous debts, upon a number of which, suits at law have been brought, judgments obtained, and executions issued against him; that plaintiff, being a brother-in-law of the defendant, as well as his trustee, and being desirous of saving the property bequeathed and devised, and to prevent the defendant from being harrassed by his creditors, has deeply involved himself by going security for him, and has also paid out large sums of money for him, and that he is otherwise indebted to the plaintiff.
The prayer of the bill is, that the Court will decree the sale of the property conveyed in trust by said will, for the satisfaction of plaintiff's claims, and the debts where he has made himself liable (493) for the defendant; and for general relief.
To this bill there was a general demurrer and joinder in demurrer; and the cause being set down for argument, upon the bill and demurrer, was sent to this Court.
The demurrer to the bill raises at once the question whether the plaintiff has therein stated a case which entitles him to the aid of this Court. The plaintiff, by allowing himself to be substituted in the place of Sidney X. Johnston, the trustee named in the will, has assumed all the duties, and become liable to all the responsibilities, which the testator had attached to the trust created by his will. It is manifest that the testator regarded his son, the defendant, as an unfit depositary of the property which he intended to give for his benefit, and it is clear that he intended that the trustee whom he selected should exercise a restraining influence over the expenditures of his son. Among the many important powers conferred, and duties imposed, upon Courts of Equity, those in relation to trusts hold a prominent place. In every thing relating to the trustee, and his cestui que trust, these Courts are to see that the object of the trust shall be fully accomplished; and it is their especial duty to supervise the acts of the trustee, and to prevent him from taking advantage, in any manner, of the person who, or whose property, is confided to his care or management. If the trustee be about to commit a breach of trust, the Courts will restrain him, and it follows necessarily that they will never sanction, or order, such a breach. In the present case, it was the duty of the plaintiff to protect the trust property, so far as he could, against the extravagant expenditures of the defendant, and not himself to encourage such extravagance, by lending him money, paying his debts, or becoming in any other way his creditor. For the reasonable and proper expenses of the defendant, the plaintiff, having the legal title of the property, with an (494) express power to sell it, may do so without calling upon this Court; and for any other expenses, the Court cannot aid him in doing that which it is his duty not to do. In either case the bill is unnecessary and improper and cannot be sustained.
What the rights of other creditors of the defendant may be, it is unnecessary for us now to say. The cases of Dick v. Pitchford, 21 N.C. 480, and Bank v. Forney, 37 N.C. 181, will be found to contain able expositions of the law in relation to the subject. Being unable to discover any equity in the case stated by the plaintiff, the demurrer must be sustained, and the bill dismissed with costs.
Per curiam.
Bill dismissed.