Alexander Magruder v. Samuel Drury

• Decision Date: 30 November 1914
• Docket Number: No. 17,17
• Citation: 235 U.S. 106,35 S.Ct. 77,59 L.Ed. 151
• Parties: ALEXANDER R. MAGRUDER and Isabel R. Magruder, Appts., v. SAMUEL A. DRURY and Samuel Maddox, Trustees
• Court: U.S. Supreme Court

235 U.S. 106

35 S.Ct. 77

59 L.Ed. 151

ALEXANDER R. MAGRUDER and Isabel R. Magruder, Appts.,

v SAMUEL A. DRURY and Samuel Maddox, Trustees.

No. 17

Argued October 27, 1914.

Decided November 30, 1914.

Mr. Nathaniel Wilson for appellants.

[Argument of Counsel from page 107 intentionally omitted] Mr. J. J. Darlington for appellees.

[Argument of Counsel from pages 108-110 intentionally omitted] Mr. Justice Day delivered the opinion of the court:

William A. Richardson, for some years before his death chief justice of the court of claims of the United States, died at Washington, District of Columbia, October 19th, 1896. By his last will and testament, dated August 9, 1895, he described himself as 'chief justice of the court of claims at Washington, a citizen and inhabitant of Cambridge, in the county of Middlesex and commonwealth of Massachusetts, and having property in said county.' By his will he appointed his brother George F. Richardson, of Lowell, Massachusetts, and Samuel A. Drury, of Washington, District of Columbia, as executors and trustees. The will was probated in the probate court of Middlesex county, Massachusetts, on the 28th day of October, 1896. It appears in the record that the deceased had a little real estate in Massachusetts, but the main portion of his estate was, and always had been, in the city of Washington. The probate of the will in Massachusetts seems to have been in deference to the expression in the will as to his place of residence. Subsequently, and upon certain proceedings being instituted to enforce taxation in Massachusetts of the estate in the hands of the executors, the supreme judicial court of Massachusetts held that the actual residence of Mr. Richardson could be inquired into in that proceeding, and upon the facts shown it was in the District of Columbia. Dallinger v. Richardson, 176 Mass. 77, 57 N. E. 224. That case grew out of the imposition of personal taxes amounting to $7,500 annually on the assets of the estate. As this would have nearly exhausted the income of the estate and cut off the support of the beneficiaries under the will, a bill for injunction was filed in this case in the supreme court of the District by the father in behalf of the present appellants, who were the beneficiaries under the will. An amended bill was subsequently filed, having for its object an injunction against the executors from paying out of the estate any taxes in the state of Massachusetts, it being stated that, notwithstanding the recitals of the will, William A. Richardson's place of residence and last domicil was in the District of Columbia, where the assets and personal securities of the estate were in the keeping of Samuel A. Drury, also a resident of the District of Columbia. In addition to the injunction, the bill prayed an account of the property of the estate which had come into the hands of the executors under the will, and that they might be required to file an account from time to time. Mr. George F. Richardson, one of the executors, being a resident of the state of Massachusetts, and declining to submit to the local jurisdiction, the amended bill was filed against Samuel A. Drury alone. The answer of Drury stated that he had the custody and control of the assets and personal securities, and expressed his willingness to account in the court or in any other jurisdiction in that behalf for the moneys received by him as executor and trustee. Such proceedings were had that, on April 1, 1899, a decree was made continuing the restraining order theretofore made in the case, and finding that the late William A. Richardson was last domiciled in the District of Columbia, where the beneficiaries lived, and it was ordered and decreed that Samuel A. Drury and Samuel Maddox, both of the District of Columbia, be appointed trustees to perform the trusts created in the will, and they were 'authorized and empowered to receive from the executors named in said will all the property whereof the deceased died seised and possessed, provided, nevertheless, that the said Samuel A. Drury and Samuel Maddox shall first give separate bonds in the penal sum of $25,000 each, with one or more securities to be approved by this court, conditioned for the faithful discharge of their duties as such trustees.' Some five reports were made by the auditor to whom the matter was referred to take accounts, and various proceedings were had, which are fully set out in the opinion of the court of appeals in this case (37 App. D. C. 519). It is enough for our purposes to state that the proceedings resulted in an order of reference to the auditor to state the account of the trustees. This order was made on January 17, 1909. The auditor named having died, a further order of reference was made to another auditor to 'state the final account of the trustees and the distribution of the trust estate in their hands, and report such commission or compensation to the trustees as may be appropriate and proper.' To this report certain exceptions were filed by the present appellants. Upon final hearing, a decree was entered by which these exceptions were overruled, and the court of appeals sustained this action of the supreme court (37 App. D. C. supra). Hence this appeal.

The argument has taken a wide range, and questions are discussed which are not embraced in the exceptions filed to the auditor's report which was the basis of action in the courts below, and in the court of appeals that court dealt with only three exceptions, stating that a number of exceptions were entered to the report, and that those relied upon in that court related to the allowance of a 5 per cent commission on principal and 10 per cent on income; to the $18,800 item allowed by the Massachusetts court; and to alleged profits made by the trustees in the purchase of notes for reinvestment.

Under the statute in force at the time of this appeal, owing to the amount involved, the decision of the court of appeals might be brought by appeal in review before this court. This court therefore sits as an appellate court for the purpose of reviewing the decree of the court of appeals, and that is the extent of the jurisdiction here. Original objections to the auditor's report and the decree of the supreme court, not brought forward in the court of appeals, cannot be made here. Alleged errors not of a fundamental or jurisdictional character, which were not presented to the appellate court for consideration, and which were waived, either expressly or by implication, will not be regarded as before this court. Montana R. Co. v. Warren, 137 U. S. 348, 351, 34 L. ed. 681, 682, 11 Sup. Ct. Rep. 96; Gila Valley, G. & N. R. Co. v. Hall, 232 U. S. 94, 98, 58 L. ed. 521, 523, 34 Sup. Ct. Rep. 229; Grant Bros. Constr. Co. v. United States, 232 U. S. 647, 660, 58 L. ed. 776, 784, 34 Sup. Ct. Rep. 452. We shall, then, consider the assignments of error which were brought to the attention of the district court of appeals.

First, as to the allowance to the trustees of 5 per cent commission on the principal, and 10 per cent on the income. As to this allowance, the auditor made a lengthy finding of fact, setting forth in detail the services rendered by the trustees over a period of ten years, finding, as to the character of the estate, that the great bulk thereof was second trust notes of small amounts, as to which the auditor says that the transactions were almost innumerable, the total number of notes approximating three thousand, and he sets forth in detail other services involving care of the real estate, looking after the repairs of the property, acquiring parcels of real estate, and the sale thereof, and saying in conclusion that he had no hesitancy in finding that the trustees were well entitled to the commissions allowed. This allowance met with the approval of both the District supreme court and the court of appeals, and seems to have the sanction of an earlier decision of this court, where it was said that such allowances were customary in Maryland and the District of Columbia. Barney v. Saunders, 16 How. 535, 542, 14 L. ed. 1047, 1050. We are not, therefore, prepared to disturb the decree of the courts below in this respect.

The next exception involves the allowance of the item of $18,800 in the probate court of Massachusetts, and charging the trustees with the balance of the estate after that allowance had been made. It appears that the executors Richardson and Drury appeared on April 4, 1899, in the Massachusetts probate court, and by petition set forth that they had been appointed and had given bond and due notice of their appointment as executors of the will of William A. Richardson; that there was not at the time of the grants of the letters testamentary, and had not been since, property belonging to the testator in the commonwealth of Massachusetts; that since the granting of letters testamentary Isabel Magruder, the only surviving child and heir at law of the said testator, had deceased, and that under and by the terms and provisions of said will it was provided that upon her decease the property of the testator should be held by the executors of said will for the benefit of the two minor children surviving the said daughter, namely, Alexander Richardson Magruder, of the age of sixteen years, and Isabel Richardson Magruder, of the...