Grinnan v. (*Woods

• Court: West Virginia Supreme Court
• Writing for the Court: JOHNSON, PRESIDENT
• Citation: Grinnan v. (*Woods, 22 W.Va. 693 (W. Va. 1883)
• Decision Date: 24 November 1883
• Parties: Grinnan v. Long et als.(*Woods, Judge, Absent.)

22 W.Va. 693

Grinnan

v. Long et als.(*Woods, Judge, Absent.)

Supreme Court of Appeals of West Virginia.

Submitted June 26, 1882

Decided November 24, 1883.

1. Where a trustee filed his bill setting out that he had in his posession a trust-fund, and praying that his trustee-accounts might be settled, and the fund distributed, and the commissioner ascertained the amount of the trust-fund in the trustee's hands, and the court at the instance of the creditors issued a rule against the trustee to show cause why the fund should not be paid into court, and the trustee in his answer to the rule failed to show cause, the court properly made an order requring the trustee to pay into court the amount of the trust-fund so ascertained to be in his hands. (p. 696.)

2 Such an order in such a case is proper, although it may not appear that the trustee had abused his trust, or that the fund was in danger by the insolvency of the trustee, (p. 697.)

3. Before such an order is made to require money in the hands of a trustee to be paid into court, the trustee should be summoned to appear and show cause why the money should not be paid into court. (p. 698.)

Johnson, President, furnishes the following statement of the case:

The plaintiff Grinnan, a resident of Virginia, having a large trust-fund in his hands, filed in Greenbrier circuit court his bill, in the nature of a cross-bill in the cause of Cfiewning v. Cowan, for the proper distribution of the said trust-fund. In his bill he alleges: "It is proper, that this bill and the said cause of Chewning v. Cowan should hereafter be heard together, or that this bill ought to be heard as a cross-bill in that case; that this court ought to take jurisdiction of the whole trustfund and distribute the same among the parties entitled thereto, according to their respective rights; that inasmuch as the trust-estate is inadequate to pay all the debts charged upon it, and these debts are unascertained, and can only be ascertained by the aid of a court of chancery, and this court has to ascertain these creditors, the amounts of their respective debts, their priorities the amount of the trust-estate, what has been paid out and to whom, in order to enable it to know how and to whom to distribute the fund under its jurisdiction and control, it is eminently proper that it, sitting as a court of chancery, should distribute this entire trustfund, as the trustee, though a resident of another State, voluntarily submits himself to the jurisdiction of this court, &c." In the prayer of the bill the plaintiff prays, "that the court may take charge of the whole trust-estate, and distribute the same among the parties thereto entitled according to their respective rights; that the court may ascertain the amount of the said trust-estate, what has been paid out and to whom; that the accounts of your orator as trustee aforesaid may be settled, that the settlement of his accounts as trustee, heretofore made in the case of Chewning v. Cowan et al, may be referred to a master commissioner of the court with leave to any party interested to file exceptions thereto and take evidence in reference to the same and to be reconsidered and reformed as may appear to be proper * * that the said estate maybe distributed according to the rights of the parties entitled to it, &c."

On the 5th day of April, 1880, the cause was recommitted to Commissioner Preston, who on the 23d of October, 1880, filed his report, by which it appears, that the amount of the trust-fund in the hands of A. G. Grinnan, trustee, was twenty-one thousand and thirteen dollars and twenty-four cents. The plaintiff, A. G. Grinnan, by his counsel excepted to this report for several reasons, but not because the amount found against him was too large. By the same decree of April 5, 1880, it appears " upon motion of John L. Marye in behalf of the creditors, who filed his affidavit in support of his motion, it is adjudged, ordered and decreed, that the plaintiff, Grinnan, be summoned to appear before the court on the first day of the next term to show cause if any he can, why the trust-fund found to be in his hands by the said report of Commissioner Preston shall not be paid into court," &c.

A. G. Grinnan filed his answer to said rule, the principal part of which is a denial and explanation of matters stated in the affidavit of J. L. Marye. He does not controvert the truth of the finding of the commissioner, that the twenty-one thousand and thirteen dollar and twenty-four cents of said trust-fund was in his hands. He does not pretend, that the money has been loaned out on time, so that he cannot immediately pay it into court. There were exceptions filed to the affidavits of Marye and Chewning, but in the view we take of the case it is not necessary to notice said exceptions.

On the 10th day of November, 1880, the cause was heard on former papers, answer of Grinnan to the rule, &c, and among other things the court said:" And it appearing to the court by the report of Commissioner Preston, that there are in the hands of Andrew G. Grinnan, trustee, twenty-one thousand and thirteen dollars and twenty-four cents ($21,-013.24) belonging to said trust-fund, the court doth adjudge, order and decree, that said exceptions to die affidavits aforesaid be overruled, and that said A. G, Grinnan shall within sixty days from the date of this decree pay over to Alexander F. Mathews, receiver of this court, the...