United States of America To the Use of Mattie Hine v. Alexander Porter Morse

• Decision Date: 28 November 1910
• Docket Number: No. 25,25
• Parties: UNITED STATES OF AMERICA TO THE USE OF MATTIE McC. HINE and Robert E. Hine, Plffs. in Err., v. ALEXANDER PORTER MORSE, the Union Trust Company of the District of Columbia, and Daniel Boone Clarke Waggaman, Executors of Daniel B. Clarke, Deceased
• Court: U.S. Supreme Court

218 U.S. 493

31 S.Ct. 37

54 L.Ed. 1123

UNITED STATES OF AMERICA TO THE USE OF MATTIE McC. HINE and Robert E. Hine, Plffs. in Err.,

v ALEXANDER PORTER MORSE, the Union Trust Company of the District of Columbia, and Daniel Boone Clarke Waggaman, Executors of Daniel B. Clarke, Deceased.

No. 25.

Argued November 1, 1910.

Decided November 28, 1910.

Messrs. William Hepburn Russell and W. H. Robeson for plaintiffs in error.

[Argument of Counsel from pages 494-496 intentionally omitted] Mr. John Selden for defendants in error.

[Argument of Counsel from pages 496-499 intentionally omitted] Mr. Justice Lurton delivered the opinion of the court:

This was an action upon a bond executed by Thomas E Waggaman, as principal, and Daniel B. Clarke, as his surety. The bond was in these words and figures:

In the Supreme Court of the District of Columbia. In Equity. No. 20,225, Docket 46.

Mattie McC. Hine et al.

v.

Robert Edward Hine et al.

Know all men by these presents, that we, Thomas E. Waggaman, principal, and Daniel B. Clarke, surety, all of the District of Columbia, acknowledge ourselves indebted to the United States of America in the penal sum of $18,000, for the payment of which we bind ourselves and every of our heirs, executors, and administrators, jointly and severally, for and in the whole. Sealed with our seals, and dated this 7th day of July, A. D. 1899.

Whereas the said Thomas E. Waggaman has been duly appointed trustee to make sale of the real estate in the proceedings in this cause mentioned.

Now the condition of the above obligation is such, that if the above bounden Thomas E. Waggaman shall well and truly discharge the duties devolving upon him as such trustee, and shall in all things obey such order and decree as this court shall make in the premises, then the above obligation to be void and of no effect; else to be in full force and virtue.

The bond, as shown by its recitals, was executed in a pending equity cause in the supreme court of the District, wherein the parties for whose use this suit is brought were parties, either plaintiff or defendant.

The declaration, in substance, averred a breach of the bond, in this: That Waggaman had assumed the duty and function of trustee for the sale directed by the decree, had sold and conveyed the property as directed, but had not accounted for the proceeds, having unfaithfully vio- lated the trust and confidence reposed in him by squandering and misappropriating such proceeds. It was further averred that on November 21, 1905, the said Waggaman had disobeyed a decree of the court, requiring him to pay into court the sum of $8,147.27, with interest from August 1, 1904, and was therefore in default.

The defenses with which we are concerned upon this writ are those made by the surety, who, by a plea which the court below sustained, challenged the obligation of the bond. The insistence is that the supreme court of the District exceeded its authority in decreeing a sale of the land which was sold by Waggaman, and his appointment to make such a sale was a nullity, and the bond executed by him with the defendant Clarke as surety mere waste paper.

The proceeding in the supreme court in which this bond was executed was a bill in equity to sell lot No. 1912 I street N. W., Washington, District of Columbia, as the property of a minor, for purpose of reinvestment under like trusts. The title was held under the will of Robert B. Hine, who died in 1895. So much of the will as concerns the title to the premises of which a sale was decreed was in these words:

'I give and bequeath to my dear wife, Mattie McC. Hine, a life interest in all my real estate. As executrix she will collect the income arising from my said real estate, and after paying all necessary expenses of collection, fire insurance, and repairs, shall retain the remainder of the income for her own use. After the death of my said wife, I give and bequeath my real estate to my son, Robert Edward, and any other children that may hereafter be born to me. If my said wife should marry again, she will, from the date of such remarriage, be entitled to retain for her own use, one half of the net income of my estate, and will pay the remainder to a trustee for my son, and any other children who may hereafter be born to me. Provided, further, that should my wife marry again, and should no child of mine by her be then surviving, the whole net income from my estate shall be retained by her, during her life, and after her death, my real estate shall be sold, and of the proceeds, one third shall be paid to my father, the Rev. Henry Hine, now of Boston Spa, Yorkshire, England, if he then be living, be not being then living, to my mother, Amelia Burnett Hine, neither of them being then living, to my sister Amelia Burnett Hine, and the residue shall be equally divided between my brothers and sisters, share and share alike. If neither parent, nor my sister Amelia Burnett Hine, outlives my said wife, then the whole net proceeds of the sale of my real estate, shall be equally divided between my brothers and sisters. Should any of these have died before this distribution takes place, their surviving children shall receive the share of the deceased parent, share and share alike.'

The complainant in the suit was Mattie McC. Hine, the widow of the testator, who averred that she had never remarried. The defendants were the only issue of her marriage with testator, her son, Robert E. Hine, then an infant of nine years of age, and the persons who, under the will, were given contingent interests. The minor, Robert E. Hine, was duly served and answered by guardian ad litem. The other defendants were made parties by publication, as persons not to be found in the District. The bill alleged that the dwelling house was deteriorating in value, that it was often unrented, that repairs, insurance, and taxes left an inconsiderable net income, which would go on diminishing. That she believed she could obtain $8,500 for the premises, a sum much larger than the value of the property to the remaindermen when her estate should fall in, and that the proceeds could be so invested as to much improve her income and better 'enable her to provide for the remainderman during his minority.' The bill alleged that the will did not prohibit a sale. The prayer was for a decree of sale and for a reinvestment, in pursuance of § 973, D. C. Rev. Stat.

Upon the pleadings and proof the court directed a sale of the said lot, and in the same decree appointed Thomas E. Waggaman 'trustee to make the sale,' requiring him to execute a bond of surety 'conditioned for the faithful performance of the trust reposed in him by this decree, or which may be reposed in him by any future order or decree in the premises.' By the same decree he was required 'to bring into court the money arising on such sale . . . to be disposed of under the direction of the court,' etc.

The contention is that the supreme court of the District has no inherent or general power as a court of equity to decree the sale of an infant's property for the purpose of reinvestment, and that its jurisdiction was wholly dependent upon statutory power conferred by §§ 969 et seq., D. C. Rev. Stat. taken from the act of Congress of August 18, 1856 [11 Stat. at L. 118, chap. 163]. Section 969 reads as follows:

'Where real estate is limited by deed or will to one or more for life or lives, with a contingent limitation over to such issue of one or more of the tenants for life as shall be living at the death of their parent or parents, and the deed or will does not prohibit a sale, the supreme court of the District may, upon the application of the tenants for life, and if the court shall be of the opinion that it is expedient to do so, order a sale of such estate, and decree to the purchaser an absolute and complete title in fee simple.'

The contention is that the only jurisdiction conferred by the statute is confined to real estate which is by deed or will 'limited to one or more lives, with a contingent limitation over to such issue of one or more of the tenants for life as shall be living at the death of either parent,' and that, under the will of Robert B. Hine, the devise to Robert Edward Hine is a vested, and not a contingent remainder, while the contingent remainders—contingent on the death of said Robert and the subsequent remarriage of his mother, the said Mattie—are not limitations over to issue of either Robert B. Hine or Mattie Hine. For this construction of the statute of the court below relied upon American Security & T. Co. v. Muse, 4 App. D. C. 12, 20; Thaw v. Ritchie, 5 Mackey, 200, and Clark v. Mathewson, 7 App. D. C. 384.

Clearly, under the will there was a life tenant and a remainder over at the death of the life tenant to Robert E. Hine, who was the issue of the testator and of the life tenant. The remainder was not absolute, for if the remainderman should die, and his mother, the life tenant, remarry, this lot was to be sold and the proceeds paid over to certain collaterals named. Technically the interest was a vested remainder, subject to open and let in the testator's brothers and sisters, and to be devested upon the death of Robert E. Hine and remarriage of the life tenant. The contention now is that if the court erred in the construction of the will, or in the interpretation and application of the statute, and decreed a sale for reinvestment, not strictly authorized by the statute, that its action and decree is to be regarded as a nullity, that the sale is void, and that the appointment of Waggaman as trustee and the execution of his bond are absolute nullities.

But if we assume that, upon a critical construction of the will and of the statute, the bill seeking a sale of this property for reinvestment did not state a case clearly within the statutory authority of the court, it does not necessarily follow that the decree of sale and all else that occurred are to be treated as...