Robb v. Vos

• Decision Date: 15 October 1894
• Docket Number: No. 38,38
• Parties: ROBB et al. v. VOS et al
• Court: U.S. Supreme Court

155 U.S. 13

15 S.Ct. 4

39 L.Ed. 52

ROBB et al.

v VOS et al.

No. 38.

October 15, 1894.

In the year 1883, James Robb, a resident of Hamilton county, Ohio, died, leaving an estate, and James Hampden Robb, May R. Miltenberger, and Charlotte M. Pancoast, as his surviving children. Charles A. Kebler, an attorney at Cincinnati, was appointed administrator. Mrs. Miltenberger and Ellen W. Robb had claims against the estate. A written agreement was executed by all concerned in the following terms:

'For an amicable settlement of all claims and controversy as to the estate of James Robb, deceased, late of Hamilton county, Ohio, it is mutually agreed by the undersigned as follows:

'(1) That Mrs. Miltenberger's claim for an annuity of one thousand dollars, in accordance with her agreement with her father for her son's education from the time he became ten years of age until he became twenty-one years of age, which is now in suit (No. 37,317) in the superior court of Cincinnati, and James Hampden Robb's claim in suit No. 37,820 in the same court, and Mrs. Ellen W. Robb's claim in suit No. 67,460 in the court of common pleas of the said county of Hamilton, are all hereby allowed by Charles A. Kebler, administrator, by and with the consent of the undersigned and at their request, as valid claims against said James Robb's estate, and shall be satisfied and discharged in the manner hereinafter provided and agreed to as to each of them, respectively; the claim of Mary Robb in suit No. 67,459, common pleas, to be also provided for and discharged as hereinafter agreed.

'(2) The deed which is alleged to have been made by the said James Robb on or about November 14, 1879, to his daughter Mrs. Isabella San Raman, conveying to her the tract of land near Cheviot, then owned and occupied by him, being without consideration, and, in consequence of his insolvency at that time, wholly void as to his creditors, it is agreed by Charles A. Kebler, as administrator of said estate, that in pursuance of the statute in such case provided, and by request of the other subscribers hereto, he shall and will immediately bring an action for the recovery of the said land, or for the sale of said land and avoidance of the said pretended conveyance, for the benefit of said estate and its creditors.

'(3) Besides the outstanding debts for personal and household expenses of James Robb, the cost of the monument heretofore agreed by the undersigned to be erected at Spring Grove cemetery in memory of the said James Robb, and all the proper costs and expenses of the administration of his estate and of the suit for the recovery of the land above mentioned, including the administrator's counsel's fees, shall first be paid out of the moneys now in his hands.

'(4) After paying the same, the remaining moneys in his hands and the proceeds of the sale of the land aforesaid, or so much as necessary, shall be set apart and invested for two trust funds, as follows: One of the said funds shall be made sufficient to pay Mrs. Miltenberger the amount already due of said annuity, in compliance with the agreement made with her father for account of her son's education, and also to yield and pay the said annuity year by year until her son becomes twenty-one years of age, if he lives; and the surplus of said fund, if any remaining after he becomes of age, or in case he dies before becoming of age, shall fall into the residuary estate, to be divided as hereinafter agreed; the other of the said trust funds to be sufficient to secure and pay to Mrs. Ellen N. Robb an annuity of six hundred dollars ($600) for and during the term of her life, payable semiannually, and to commence from the ___ day of _____, A. D. ____ and from and after her decease to pay the said Mary Robb, her daughter, if she survives her mother, an annuity of three hundred dollars ($300) payable semiannually, for and during the term of the life of said Mary, and that the annuities so to be paid to the said Mary R. Miltenberger, Ellen W. Robb, and Mary Robb, respectively, shall be in full satisfaction and discharge of all their claims aforesaid as creditors of the said estate.

'The appointment of trustees and appropriation of funds necessary and sufficient for the two trusts aforesaid shall be effected as soon as practicable by the said Charles A. Kebler, the administrator, and the parties concerned.

'(5) All the pictures, library, letters and papers, plate, and other chattels, useful or ornamental, belonging to the said estate, shall be turned over to James Hampden Robb, reserving for Mrs. Charlotte M. Pancoast some one article to be agreed upon by them, which portions of the estate shall be received and taken by the said James Hampden Robb in full satisfaction and discharge of all his claim aforesaid as a creditor of the said estate.

'(6) The residue, if any, of the moneys now in the administrator's hands, and which shall arise from the sale of the real estate aforesaid, after providing for said trusts, and also any residue which may be left of the trust funds so set apart, after fulfilling the said trusts respectively, shall be divided and paid in four equal shares to and among the children and heirs of the said James Robb, deceased, viz. James Hampden Robb, Mrs. Isabella San Raman, Mrs. Mary R. Miltenberger, and Mrs. Charlotte M. Pancoast.

'It is understood that the foregoing agreement shall take effect immediately upon the order of the court for the sale of said real estate, and the setting aside the deed from James Robb to Isabella San Raman herein referred to, and not before.

'In witness whereof, the said Charles A. Kebler, administrator of the said estate, Mary R. Miltenberger, Charlotte M. Pancoast, James Hampden Robb, Ellen M. Robb, and Mary Robb have hereunto set our hands and seals, in five parts interchangeably, this ___ day of June, in the year 1883.'

In carrying out the settlement provided for in the said agreement, $10,000 in the hands of the adminis- trator were invested in the purchase of certain pieces of real estate in the city of Cincinnati from one Moritz Loth, who conveyed the same to James Hampden Robb and Charles E. Strong, trustees by a deed dated February 5, 1885. This deed expressed a consideration of $10,000 as paid by the said Robb and Strong, as trustees, but did not define a trust or name any cestui que trust. By an instrument bearing date the same day, Robb and Strong, trustees, leased the same property to Moritz Loth during the joint life of Ellen W. Robb and Mary Robb, and during the life of the survivor, Loth, as lessee, agreeing to pay to the trustees a rent of $500, payable semiannually, and to purchase the same property, on the death of Mary and Ellen W. Robb, for the sum of $10,000.

Robb and Strong, the trustees, were residents of the city of New York, and Ellen W. Robb, Mary Robb, and Moritz Loth resided in Hamilton county, Ohio, and the deed and lease were duly recorded in that county.

On March 30, 1885, Moritz Loth mortgaged his interest in said property and in other real estate to one William Stix, to secure a loan of $10,000.

In November, 1885, one Meyer Gugenheim, a judgment creditor of Moritz Loth, brought an action in the court of common pleas of Hamilton county, Ohio, to subject all the real estate of Loth to the satisfaction of his judgment, making parties defendant a number of creditors of Loth, who held title to or liens upon the property claimed to be his, including Robb and Strong. trustees, and William Stix. A summons in that action was issued for Robb and Strong, trustees, and also for William Stix, as well as for the other defendants. On the 19th day of November, 1885, Kebler accepted service of that summons for Robb and Strong, trustees, and for William Stix, as follows:

'We accept service of summons in the within cause for Charles E. Strong and James Hampden Robb, trustees, and for William Stix, this 19th November, 1885. Kebler & Roelker, Attorneys for Above-Named Defendants, Duly Authorized.'

The petition described various parcels of real estate claimed to be the property of Loth, and asked that the several defendants be required to show what interest they respectively had therein, and that the liens be marshaled and priorities determined, and a sale be made. As to the parcels owned by Robb and Strong, as trustees, the petition averred that they held the property only as security, and asked that the court so find. As bearing on this averment, interrogatories were attached to the petition, requiring Robb and Strong, trustees, to state what sum of money was paid to Loth as the consideration of the conveyance to them, what indebtedness existed at the time of the conveyance in reference to said property, whether any contract existed between them and Loth in reference to the property, etc.

The sheriff returned the summons: 'Service accepted by Kebler & Roelker, attorneys for Charles E. Strong and James Hampden Robb, trustees, and for William Stix, as per acceptance above written.'

On December 18, 1885, Kebler filed the answer and cross petition of Robb and Strong, trustees, correctly setting forth their title to the premises, and prayed that their interest be protected therein. He answered under oath the interrogatories as attorney for Robb and Strong, trustees, assigning as a reason therefor that they were nonresidents of the state, and absent therefrom.

Kebler also filed in the same case the answer and cross petition of said William Stix, and at a later stage of the case he filed an amended answer and cross petition of William Stix, setting up the maturity of several of the mortgage notes, breach of condition of the mortgage, and prayed a sale of the leasehold in the premises now in controversy, and of other property mentioned in that cross petition. To these pleadings of Stix, Kebler filed answers for Robb and Strong, trustees, which he himself swore to.

On February 15, 1887, he consented to an elaborate decree on the cross...