Lake v. Hardee

• Decision Date: 31 July 1876
• Citation: 57 Ga. 459
• Parties: William Lake, trustee, plaintiff in error. v. John H. Hardee et al., defendants in error.
• Court: Georgia Supreme Court

57 Ga. 459

William Lake, trustee, plaintiff in error. v. John H. Hardee et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

[COPYRIGHT MATERIAL OMITTED.]

Equity. Verdicts. Decrees. Practice in the Superior Court. Statute of limitations. Executors and administrators. Fraud. Before Judge Tompkins. Chatham Superior Court. May Term, 1875.

This cause being submitted to the jury, they found as follows:

"We, the jury, find that the property of Thomas Hardee, at his death, consisted of houses, negroes and other property, as alleged in the bill, the value of which was, at the time of the appraisement, February, 1859, $19,518 00. And the jury do find that William Lake did take possession of said property, and did receive and get possession of one-fourth of said estate at the division thereof. And the jury do find that the said William Lake has since taken possession of said one-fourth of said estate, and, up to the filing of this bill, held possession of, and managed and controlled said property as trustee for the complainants. And we do further find that the said William Lake has failed and refused to account to complainants for their property, and unintentionally disregarded his duties as trustee. We do further find that said William Lake did, alter possessing himself of the one-fourth part of the estate of Thomas Hardee as trustee for complainants, convert to bis own use all of said property except the tract of land (one hundred and fifty acres,) bought from the estate of William Hardee by said Thomas Hardee, and did sell some of said property and convert the proceeds of the said sale to his own *use and thereby defrauded complainants, and that he has so fraudulently and corruptly managed said estate, that he has never paid over to said complainants one cent of the principal or interest due to them from him as trustee.

"We cannot find that the said William Lake did apply any of the proceeds of the trust estate to the purchase of lot number thirty-eight, Warren Ward, in the city of Savannah. We find that some of the complainants have demanded a settlement from said William Lake, of said trust estate, and that he has refused and failed to settle.

"We find that the said William Lake has declared that he wished the trust estate of complainants was settled up, but do not find that he said he had sold all of the real and personal property of said trust estate and used it for his own benefit, but intended to pay it back.

"We find that the estate of Thomas Hardee was in debt at the time of his death, one thousand four hundred and twenty-seven dollars and eighty-two cents, ($1,427 82,) exclusive of the bond held by Frank P. Hardee, and that the said William Lake has paid off debts to the amount of one thousand four hundred and twenty-seven dollars and eighty-two cents, ($1,427 82,) and realized from sales of estate of Thomas Hardee one thousand three hundred dollars, ($1,300 00.) We find that the amount of money (on the basis of gold) derived from the said trust property by the said William Lake when he took possession of it in South Carolina, in 1857, to the close of the war, by the custody, control and hire of the negroes so taken possession of by him at the time, to be three thousand eight hundred and sixty-eight dollars and forty cents, ($3,868 40,) with interest.

"We find that the negroes Kinkie and Nannie, died natural deaths; the negro Jackson was drowned. The negroes Center and Minter were freed by the United States government., their value being, when taken, one thousand four hundred dollars, ($1,400 00.)

"We find that part of the estate of Thomas Hardee assignedto complainants on the l?th of February, 1859, was *of the value of four thousand five hundred and twenty-eight dollars and fifty cents, ($4,528 50.) And that William Lake converted to his own use four thousand two hundred and ninety-nine dollars and forty cents, ($4,299 40,) of the same.

"Thomas F. Butler, Foreman.

"Savannah, Georgia, May 29th, 1875."

Whereupon the chancellor rendered the following decree: "And it appearing that Mary Jane Hardee has died since the fiilng of the bill of complainants—a minor at the time of her death, and intestate—leaving the other complainants, except John H. Hardee and J. S. Guy, and Benjamin W. Hardee, her only heirs at law. And it further appearing that said Benjamin W. Hardee is the brother of complainants, except John H. Hardee and J. S. Guy, and is entitled to one-sixth of the amount to be recovered out of William Lake, the defendant, but said Benjamin W. Hardee is not a party to the bill of complainants, and no decree can be made as to said one-sixth interest. It is therefore adjudged, ordered and decreed that complainants do recover from William Lake, the defendant, the sum of three thousand five hundred and eighty-two dollars and eighty three cents ($3,582 83,) being five-sixths of $4,299 40, the amount of complainants' trust estate which was fraudently and corruptly converted by William Lake, the defendant, to his own use, together with interest on said $3,582 83, from the 12th day of February, 1859, until the 12th day of February, 1865, at the rate of seven per cent. per annum; the interest up to February 12th, 1865, amounting to $1,504 79; and with interest from said 12th day of February, 1865, upon said principal and interest, the total being $5,087 62 at the rate of six per cent. per annnm, annually compounded, until the day on which said defendant, William Lake, shall satisfy and pay off this decree. This compounding of interest being allowed and decreed to complainants against the defendant by reason of the fraudulent and corrupt management of defendant with regard to complainants' trust estate, and the large amount of the hire and* profits of said trust estate received by defendant and converted to his own use.

"And it is further ordered and adjudged and decreed, that execution do issue against the property of defendant for the recovery of said principal and interest, and when collected, that one-fifth thereof be paid to John H. Hardee and Ann M, his wife, one-fifth to Jeremiah F. Hardee, one-fifth to Edwin B Hardee, one-fifth to J. S. Guy and Margaret S., his wife, and the remaining fifth to Abraham Hardee. It is further ordered that all costs be paid by the defendant, William Lake.

"Henry B. Thompkins,

"Judge E. F. C. Ga., as Chancellor, "

"June 25th, 1875.

For the remaining facts, see the opinion.

Hartridge & Chisholm; R. E. Lester, for plaintiff in error.

R. R. Richards, for defendants.

JACKSON, Judge.

Thomas Hardee died in South Carolina possessed of an estate of lands and negro slaves, about the year 1857. Lake, who married one of his daughters, qualified as executor. The complainants were children of W. W. Hardee, son of the testator, and grand-children of the testator. W. W. Hardee died before his father. The estate was divided among the legatees, but the part alloted to W. W. Hardee was put in the executor's hands to see whether the legacy lapsed on account of W. W. Hardee's death before his father's, and to be held to answer to a bond given by W. W. Hardee, and indorsed, by testator, if it was liable therefor. There was some dispute whether this division was temporary or permanent. Lake sold some lands which could not be equally divided, and before the war moved the share of complainants, in money and negroes, to Savannah, Georgia, where he lived. Before the war, and about its beginning, he sold some of the slaves belonging *to this share of complainants' father, and about 1863 invested money in other slaves. It was in dispute whether he bought the latter for himself or for the share he thus held for complainants, in certain contingencies, but he obtained no order of any court either to sell or to buy. In 1858 or 1859 he filed a bill in South Carolina to fix the rights of the parties and to settle the estate, but it was suffered to drag along until Beaufort fell into the federal hands during the war, and the court-house...