Hammond v. Hopkins, 143 U.S. 224 (1892)
U.S. Supreme CourtHammond v. Hopkins, 143 U.S. 224 (1892)
Hammond v. Hopkins
Argued November 11-12, 1891
Decided February 29, 1892
143 U.S. 224
A court of equity will not aid a party whose application is destitute of conscience, good faith, and reasonable diligence, but will discourage stale demands for the peace of society by refusing to interfere where there has been gross laches in prosecuting rights or where long acquiescence in the assertion of adverse rights has occurred, and in these respects each case must be governed by its own circumstances.
A purchase by a trustee of trust property for his own benefit is not absolutely void, but voidable, and it may be confirmed by the parties interested, either directly, or by long acquiescence, or by the absence of an election to avoid the conveyance within a reasonable time after the facts come to the knowledge of the cestui que trust.
Two partners owned real estate in common, some of which was used in the partnership business. One died, making the other by his will a trustee for the testator's children, with power of sale of all the real estate, and directing that the business be carried on. After carrying on the business for some time, the trustee sold the real estate by auction and bought portions of it in through a third person, and accounted for the half of the net proceeds. This transaction was open, and was known to all the cestuis que trustent, and was objected to by none of them. Held that there was nothing in all this to indicate fraud.
In all cases where actual fraud is not made out, but the imputation rests upon conjecture, where the seal of death has closed the lips of those whose character is involved, and lapse of time has impaired the recollection of transactions and obscured their details, the welfare of society demands the rigid enforcement of the rule of diligence.
The Court stated the case as follows:
This was a bill filed in the Supreme Court of the District of Columbia April 8, 1884, by William B. Hopkins, Anna B. Hopkins, by her next friend, William B. Hopkins, Sarah E. Hopkins, by her next friend, Elizabeth A. Early, Elizabeth A. Early, Mary V. Wailes, Alice C. Hall, and Ida M. Stone, against Bertha Hopkins, Bertha Hopkins, administratrix of John S. Hopkins, Esther E. Hopkins, Elizabeth B. Luttrell, Ira W. Hopkins, Mary E. Hopkins, Bettie Davenport, Samuel C. Raub, trustee for Bettie Davenport, Samuel C. Raub, executor of George N. Hopkins, L. Freddie Hopkins, administratrix, Thomas J. Luttrell, administrator of George W. Hopkins, and Thomas J. Luttrell, executor of Cornelius Hopkins, alleging that prior to and on the 23d day of November in the year 1858, John Hopkins and George W. Hopkins were seised and possessed in fee simple each of an undivided moiety, as tenants in common, of squares numbered 94, 95, 96, 110, 111, in the City of Washington, as laid down on the public plats of the city, and that John Hopkins, on that day, executed his last will and testament, a copy of which was annexed. That John Hopkins died November 27, 1858, leaving his children and heirs at law, Isaac H. Hopkins, Elizabeth A. Early, born Hopkins, George Washington Hopkins, William M. S. Hopkins, Emeline V. Lilburn, born Hopkins, Mary V. Wailes, born Hopkins, Alice C. Hall, born Hopkins, John S. Hopkins, and Levin Hopkins. That Isaac H. and Levin Hopkins have since died intestate and without issue. That George Washington Hopkins died in the month of July, 1870, leaving as his only children and heirs at law, William B. Hopkins, then eleven years of age, and Anna B. Hopkins, then two years of age. That the said Emeline V. Lilburn conveyed
on April 7, 1884, all her right and title, absolutely and unconditionally, in said estate to her daughter Ida M. Stone, and that John S. Hopkins died May 7, 1883, leaving as his only child and heir at law the defendant Bertha Hopkins.
That the said George W. and John S. Hopkins accepted the said trust, entered into possession of said premises, carried on the business of brickmaking for several years, collected the rents and profits of said estate, and, as is charged upon information and belief, sold at various times prior to May 1, 1864, portions of said property for which they received certain moneys, the particulars of which complainants propose to prove before the auditor.
It was then charged that it had lately come to the knowledge of the plaintiffs that "at this period" the trustees meditated a fraudulent scheme to obtain the entire estate in their own right, "freed and discharged of the trusts under which they held it," and that, "in pursuance of this scheme of fraud," John S. Hopkins persuaded his brother William M. S. to convey to him his share in his father's estate, William being of dissipated habits, and mentally enfeebled by alcoholic excesses, by deed dated June 20, 1860, and recorded July 7, 1860, and under his command and direction to sign the name of his wife, Sarah E. Hopkins, thereto, and by means of fraud obtained the certificate of acknowledgment to said deed of two justices of the peace. Ignorance of these facts was averred, the circumstances of their discovery to be thereafter stated at length.
It was further stated that William M. S. Hopkins, on January 28, 1864, conveyed all his right, title, and interest in his father's estate to one Christopher Ingle, in trust for the benefit of his wife, Sarah E. Hopkins, which fact had lately come to the knowledge of the complainants under circumstances that would thereinafter be set forth at length.
The bill then alleged that in pursuance of the fraudulent scheme before mentioned, the trustees advertised the property for sale at public auction on May 10, 1864, a copy of which advertisement was annexed. That they fraudulently procured James Chapman to attend the sale, and bid on their behalf as individuals, and that Chapman became the purchaser for them
of squares 95, 96, and 111; of lot 1, square 94, and lots 16, 17, 18, 19, 20, 21, 22, 38, and 39, in square 110, and that on May 20, 1864, George W. and John S. Hopkins conveyed the property to Chapman for the consideration of one dollar, and Chapman reconveyed, under the same date, square 111, to George W. Hopkins, as an individual, for the alleged consideration of $9,093.42, and the other property to George W. and John S. Hopkins, as individuals, for the alleged consideration of $10,842.24, all the conveyances being recorded November 16, 1864. Plaintiffs averred that the purchases by Chapman were for the benefit of the trustees as individuals, without the knowledge or consent of the plaintiffs.
It was further charged that
"the said trustees, in furtherance of their said fraudulent scheme to possess themselves individually of the said trust estate and brick business and in order to give a semblance of right to their said fraudulent conduct, did, after a lapse of nearly seven years from the death of their testator, file in the orphans' court of said district 'a first and final account' of what purported to be an 'account of the personal estate of John Hopkins, deceased, by George W. and John S. Hopkins, executors,' alleged to consist of the personal estate of said decedent, of the profits made out of the brick business, and the value of the deceased's interest in the firm of John and George W. Hopkins, showing that there was for distribution the sum of $22,131.46, and these plaintiffs have caused diligent search to be made among the records of said orphans' court for the vouchers and papers on which said account was based, but have not been able to find the same, so as to discover in what manner the item of $14,952.66 -- the proceeds of sale of the half interest -- was made up, a certified copy of which account is herewith filed and prayed to be read as a part of this bill, and the said trustees, without explaining the nature of their trust or their fraudulent conduct in regard to said sales, and without actual notice to or any personal knowledge of any of these plaintiffs, did obtain an order of said court directing a distribution of the sum of $2,667.60 to each of the children then living of said John Hopkins as heirs at law."
The payment of the distributive shares under the order
(except that allotted to William M. S. Hopkins) was admitted, but the jurisdiction of the court denied, and ignorance of the alleged fraud set up in excuse of any estoppel arising from the acceptance of and receipts for their shares.
Certain sales to bona fide purchasers prior to November 16, 1864, and prior to December 22, 1875, were referred to, and the receipts of moneys therefor. It was then alleged
"that the said trustee, George W. Hopkins, trustee as aforesaid, died intestate on the 22d December, 1875, leaving as his only children and heirs at law George N. Hopkins; said defendants, Elizabeth B. Luttrell, born Hopkins; Ira W. Hopkins; Mary E. Hopkins, and Cornelius Hopkins. That letters of administration on his estate were granted to said defendants L. Freddie Hopkins and Thomas J. Luttrell. That said George N. Hopkins has since died on November 18, 1881, having first devised, by way of executory devise, all his real estate to said defendant Samuel C. Raub, as trustee for said defendant Bettie Davenport, her heirs and assigns. That the contingency on which said devise was limited has happened, and the equitable estate in fee simple is vested in her, as all of which will more fully appear by reference to said will, hereto annexed, and prayed to be read as part of this bill. That letters of administration on said George N. Hopkins' estate were granted to said defendant Samuel C. Raub. That said Cornelius Hopkins has since died on July 17, 1883, having devised his entire estate as follows: one-half to said defendant Mary E. Hopkins, one-quarter to said defendant Elizabeth B. Luttrell, and one-quarter to said defendant Ira W. Hopkins. That to said Thomas J. Luttrell letters testamentary have been granted as executor of said Cornelius Hopkins."
Partition proceedings between John S. Hopkins and the heirs of George W. Hopkins, and between the heirs of George W. Hopkins, were then set up, and the sale by John S. Hopkins of lots allotted to him to bona fide purchasers, as also by the heirs of George W. Hopkins. It was further averred that John S. Hopkins died May 7, 1883, leaving, him surviving, his widow, Esther E. Hopkins, and Bertha Hopkins, his only child and heir at law, and that letters of administration
on his estate had been granted to Bertha Hopkins as sole administratrix.
The bill then stated:
"That these plaintiffs do severally aver that they have within the last past few weeks discovered for the first time the following circumstances in the manner herein set out, namely, that when the said John S. Hopkins, trustee, induced his brother and cestui que trust, William M. S. Hopkins, to convey to him his estate, as alleged in paragraph eight, the said John S. Hopkins charged the said William that he should not tell his wife, the said plaintiff Sarah E. Hopkins, of his having made such deed, and threatened him that if he did, his said wife would leave him and return to Baltimore, to her father. That numberless times from that time to the date of his death, the said John S. Hopkins inquired of the said William if he ever informed his wife of the conveyance to him, and on every occasion urged him not to do so. That the said William, being always poor and frequently in positive want for the absolute necessities of life, was constantly importuning the said John S. Hopkins for his share of the estate, and waiting for a division, when the said John S. Hopkins did pay to the said William at various times, in all, about nine hundred dollars, and put him off by alleging that he was waiting for the property to rise in value, and when he sold that, the said William would get his share. At other times when the said William would threaten to sue the said John S. Hopkins, the latter would bluff him off by such statements that, if he did sue, he would not get a cent, but that he would give it to his wife, who had separated from said William, and that so it was, by intimidations, threats, and promises, the said William was always waiting to the hour of the death of the said John S. Hopkins in the hope that he would get his share of the estate. That when the said John S. Hopkins died unexpectedly on May 7, 1883, and had made no provision for the said William, the said William began to seek the advice of counsel as to what were his rights, and, after having consulted several without effect at a considerable waste of time, finally placed his case, about the first of February last past, in the
hands of Samuel L. Phillips, attorney at law. That the said attorney undertook the investigation of the case, and discovered for the first time from living disinterested witnesses that the said James Chapman had never paid one dollar of consideration for said land, but had bought the same for and on account of said trustees, and that the sale was fraudulent and void. That the said attorney discovered that the said William had conveyed his interest to said Ingle, in trust for said plaintiff Sarah E. Hopkins, his wife, and if any recovery was to be had, the said Sarah E. Hopkins should be informed of her rights. The said attorney thereupon wrote a letter to said Sarah E. Hopkins, residing in Baltimore, Maryland, and who, in a day or two after its receipt, came to Washington, called on said attorney, and, this plaintiff Sarah E. Hopkins avers, was told for the first time in her life on the 5th of February, 1884, either of the conveyance by said William to said John S. Hopkins or the conveyance of William to said Ingle in trust for her benefit, or of the fraudulent practices of said trustees as hereinbefore set forth as to the purchase of said land, and the said Sarah E. Hopkins had thereupon authorized said attorney to bring suit to enforce her rights. That in order to secure further information, if any existed, the said attorney instructed the said William to call on his sisters, and make an "
appointment with them to see him, said attorney, which the said William did do during the month of February of March, 1884, and at which interview the said William informed these plaintiffs Elizabeth A. Early, Mary V. Wailes, and Alice C. Hall of the discovery of witnesses who would testify that the said sales from said trustees to said Chapman, and said Chapman to said George W. Hopkins and John S. Hopkins jointly, and to said George W. Hopkins individually, were without consideration, fraudulent, and void, as hereinafter set forth, and these plaintiffs aver that this was the first time in their lives that they, or either of them, had ever been informed or in any manner known of said fraudulent sales, or had any reason to suspect that the same were not true and bona fide. That the said attorney called March 27th last past on these plaintiffs Elizabeth A. Early, Mary V. Wailes, and Alice C. Hall, and
said Emeline V. Lilburn, and they severally aver that they were informed by said attorney for the first time of the particulars of the fraudulent practices of said trustees in buying at their own sales through said Chapman, as hereinbefore set forth, but, on the contrary, aver that by the assurance of said trustees that the same were bona fide, by the suppression of the truth these many years, by the fact that they were always informed that the said trustees had plenary power under said will of their father, by the great confidence they had in the integrity of their said uncle, by their incapacity as females, entirely unused to business, these plaintiffs Elizabeth A. Early, Mary V. Wailes, Alice C. Hall, and their sister, Emeline V. Lilburn, have uncomplainingly submitted to what they have often deplored as their ill fortune, while another member of the family, their own brother, and his daughter, claiming through the same ancestors, were in possession of estates worth over two hundred thousand dollars. That these plaintiffs thereupon immediately resolved to enforce such rights as they were entitled to, and authorized said attorney to take the necessary legal proceedings. That this plaintiff William B. Hopkins was a child only five years of age when said fraudulent sale was made, and said plaintiff Anna B. Hopkins was not born for nearly five years afterwards, and that this plaintiff William B. Hopkins, on the 31st day of March last past, was for the first time in his life informed of the facts hereinbefore recited as to said fraudulent conveyances by said trustees and Chapman. The said Anna B. Hopkins is still an infant, fifteen years of age. That Emeline V. Liburn, the grantor of this plaintiff Ida M. Stone, was present on March 27th last past at the interview of said attorney with her said sisters, and heard for the first time in her life that the said sales from said trustees to said Chapman, and back to said George W. Hopkins and John S. Hopkins and George W. Hopkins individually, were fraudulent and void for the causes herein set forth, and the said plaintiff Ida M. Stone does aver that down to said 27th day of March the said Emeline V. Lilburn knew nothing of said fraudulent practices of said trustees, or either of them, but, on the contrary, discovered the same in the manner hereinbefore set forth,
and the said plaintiff Ida M. Stone does aver that she was ignorant of the same down to April 7, 1884, the date of the conveyance to her, said plaintiff, by her mother, said Emeline V. Lilburn.
"Whereby, if these plaintiffs shall prove these facts to the satisfaction of your honorable court, they allege that they have been guilty of no negligence in the prosecution of their rights, and are entitled to relief."
"That these plaintiffs have been informed, and so aver, that there is yet unsold a large portion of said estate, and in the possession of said defendants, namely, sublets four and six, in square 95; subdivision lots 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 39, and 40, in square 96; subdivision lots 14 and 15, in square 94, and that the same are worth two hundred thousand dollars, and that the distributive share of each of these plaintiffs will amount to twenty thousand dollars."
Complainants thereupon prayed that the deeds
"from said trustees to said Chapman, and from said Chapman to said George W. Hopkins and John S. Hopkins jointly, and to said George W. Hopkins individually, may be declared void and cancelled, and that the said estate is held by the defendants, as heirs at law of said George W. Hopkins, on the original trusts mentioned in said will of John Hopkins, deceased. That the said estate may be divided as it was the duty of said trustees to have done. That an account may be stated of the sums received, with interest, on all sales made by said trustees or either of them, or by any of the defendants, and also of what these plaintiffs, or either of them, received, with interest, on said pretended division, and that these plaintiffs may be allowed, according to their respective interests, their shares of such sales, and that such sums found to be due to each of these plaintiffs may be declared to be a lien on the said real estate respectively held by them, the defendants,"
and for judgment and execution, injunction, a receiver, and general relief. Answers under oath were expressly waived.
Among the exhibits attached was a copy of the will of John Hopkins, as follows, omitting some formal and immaterial portions:
"I give and bequeath my little slave boy, Frank, to my daughter Victoria Hopkins, as her sole and absolute property."
"I give and bequeath my servant woman, Leah, aged about twenty-seven years, and her youngest child, Robert, and any increase of said slave woman, to my daughter Alice, as her sole and absolute property."
"I give and bequeath my slave woman, Hannah, and any increase she may have, to my daughter Elizabeth A. Early, as her absolute property, on the condition, however, that the sum of four hundred dollars shall be deducted from my said daughter's share in the final distribution, as hereafter provided."
"I give and bequeath all the rest and residue of my property of every description, real, personal, and mixed, situate and being in the District of Columbia or elsewhere, to my brother George W. Hopkins and my son John S. Hopkins, and the survivor of them, and the heirs, executors, administrators, and assigns of such survivor, in trust, nevertheless, and to and for the uses and upon the trusts following, and none other, that is to say:"
"To carry on the brickmaking business, as now conducted by may said brother George W. Hopkins and myself in Washington City, D.C. Said business to be under the direction of my said brother George W. Hopkins, assisted by my said son John S. Hopkins as clerk, for which he is to receive a regular stated salary."
"To receive the rents, profits, issues, and income of said estate and of said business, or my portion thereof, and to apply the same first and immediately, without waiting for the year allowed by law to expire, to the payment of my funeral expenses, and all my just debts, which are few; next, to a reasonable and proper pay or salary to my said son John S. Hopkins, as clerk in said business at the kiln, said pay to be sufficient for the reasonable and proper maintenance of my said son and his family, and then to the proper and reasonable expenses and support of my family (including my said daughter Elizabeth A. Early and her daughter) as it now exists, and the education of the younger members thereof. And the surplus of such rents, issues, profits, and income, if any, shall be,
from time to time, after the payments from time to time as above, invested by my said trustees as hereafter stated, or may, from time to time, in such sum or sums advanced by my executors and trustees as they may in their discretion deem fit, to such of my children as my said trustees and executors may think really need and deserve it, such sums so advanced to be, without interest, deducted from the share or shares of the child or children receiving the said advances in the final distribution of my estate as hereafter provided. And upon further trust that my said trustees shall, where in their judgment a sale of the real property owned by me and my said brother George W. Hopkins, or any part thereof, or of the brick kilns and the materials or implements thereunto belonging, or of said business, is essential or necessary for any cause whatever, or would be advantageous, sell and dispose of at public or private sale at such time or times, after such notice, and upon such terms as they may deem most for the interest of my estate, and by proper conveyances convey the same to the purchasers, who, having paid his or her purchase money to my said executors, shall be under no obligation to see to the application thereof under the trust of this, my will, nor answerable for the misapplication of the same. And upon further trust that the proceeds of any such sales, as well as the surplus proceeds or incomes, as hereinbefore stated, if any there be, shall be by my said trustees rein vested in such safe and profitable securities as to my said trustees shall seem best, whether the same be in real estate, mortgages, deeds of trust, or stocks, subject, however, to the privilege of advances as already given and stated, of which the said trustees are alone to judge. And upon further trust that upon the arrival of my daughter Alice to the age of eighteen years, which will occur on or about the first day of May, eighteen hundred and sixty-four, my estate of every kind shall be divided by my said trustees and executors among my children, deducting from the share of each child in such division the amount of such advances so as aforesaid made to him or her, and deducting from the share of my said daughter Elizabeth A. Early the sum of four hundred dollars for the slaves aforesaid bequeathed
to her, provided, however, that no deduction is to be made in such final division from the shares of those children now at home and remaining there as of my family, nor from the share of my said daughter Elizabeth A. Early for the board and maintenance of her said daughter Mary, for any amount advanced for the support of the family for the education of Alice. And in further trust that my daughter Alice's portion in such division shall be held and taken by my said trustees in trust for her until her arrival at the age of twenty-one years, or her marriage, and the interest of her share until the happening of either event shall be paid toward her support and comfort, and upon her arrival at the age of twenty-one years, or her marriage, her portion shall be paid or delivered at once to her in such manner as my said trustees shall think most for her interest; and, in case of her death before marriage or becoming of the age of twenty-one years, her said share be divided equally among the rest of my children."
"And upon further trust that the respective shares of my sons Isaac and Levin shall also be taken and held by my said trustees in trust for said sons Isaac and Levin, or be paid over to them by installments, or in whole, or retained, and the interest paid them, as in the judgment of my said trustees may seem best and most for the interest of my said sons Isaac and Levin."
"I wish and direct that in the division of my estate as aforesaid such of my slaves as have not been hereinbefore bequeathed shall be appraised by agreement among my children, by my said trustee, or by disinterested persons elected by said trustee, and that my children shall each select for herself or himself the slave or slaves they may each desire, or, if that cannot be done, that the distribution of such slaves among my children be by lot, and that the amount of the appraisement of such slaves so selected or drawn shall be so much of the share of the child so selecting or drawing. I wish and direct that my slaves shall not be sold out of the family before such final division of my estate, nor after such division, by the children to whom they may be respectively allotted in such division, unless for grossly improper conduct or insubordination. I
greatly desire, as already stated, that my family shall remain as it now is, without change or modification or sale or valuation of the furniture or slaves until the said division of my estate, and that it shall until then be supported by the brick kiln business as though I were living, and as I believe the squares and lots of ground owned by my brother George and myself is now and will continue to increase in value, I desire, if possible, that said land may be kept unsold and undivided until as above stated, as it will thus be greatly to the advantage of my family; but, as circumstances now unforeseen may make a change necessary or desirable, I cheerfully trust in the prudence and discretion of my said trustees, and I give them full power, as above, to exercise their judgment as circumstances may arise making it proper to dispose of said land and business, or to change and alter the same, believing that they will have the comfort and welfare of my family and their relatives much at heart."
"Lastly, I hereby nominate and appoint my said brother George W. Hopkins and my said son John S. Hopkins executors of this, my last will and testament, hereby revoking and annulling all other wills heretofore made."
Also the advertisement of the sale of May 10, 1864:
"By Jas. C. McGuire & Co., Auctioneers"
"Executors' Sale of Valuable Brick-Yard and Appurtenances"
"The whole square No. 111, with fine brick residence and outbuildings, large number of lots, some of them improved with frame dwelling houses, together with the machinery, material, and implements for the manufacture of bricks. On Tuesday afternoon, May 10th at 3 o'clock, on the premises, we shall sell the whole of squares Nos. 95 and 96, in the northern part of the First Ward, on Twentieth Street West, known as 'Hopkins' Brick-Yard,' which is believed to be one of the best located in the District, having both Georgetown and Washington for a market, an abundance of fine clay, brick, and tempering sheds, kilns, offices, and all necessary outfit for a first class brickyard. The yard will be worked until the day of sale. "
"Immediately after, we will sell the stock of horses, mules, carts, wheelbarrows, buggy, moulds, sieves, sand &c. &c.; also the whole of square No. 111, formerly the residence of Colonel Eaton, fronting, respectively, on Connecticut Avenue, 20th Street North, Q and R streets, and 19th Street West, improved by a large, brick dwelling house and back buildings, carriage houses, stabling &c. &c., the whole enclosed and beautified with fruit and ornamental trees and shrubbery."
"Lots Nos. 8, 9, 10, 15, 16, 17, 18, 19, 20, 21, and 24, in subdivision of square No. 110, fronting each on 20th street, between R and T Streets."
"Lots 36, 37, 38, 39, 42, 43, 44, and 45, in same square, fronting on 19th Street west, between R and T Streets. Four of the latter are improved each with a small frame dwelling house, and will be sold separately."
"The whole of square No. 94, fronting, respectively, on Massachusetts Avenue, 20th and 21st Streets west and north, Q Street, with the improvements, consisting of one large frame stable and sheds, two small frame houses, and an office."
"Terms of sale: one-third cash; the remainder in 6, 12, and 18 months, with interest, secured by a deed of trust on the premises. All conveyancing, including revenue stamps at the cost of the purchaser."
"A cash payment on each piece of real estate will be required at the time of sale."
"GEO. W. HOPKINS,"
"JOHN S. HOPKINS, Executors"
"(Chron. & Star.) JAS. MCGUIRE & Co., Auct's"
A copy of the "first and final account of George W. and John S. Hopkins, executors of John Hopkins, deceased, the requisite legal notice having been given" was also annexed, and other exhibits.
Defendant Davenport answered setting up, among other things, the death of the child referred to in the will of George N. Hopkins and the conveyance of the real estate therein
named to her by defendant Samuel C. Raub, as to whom the bill was taken as confessed.
The answers of defendants Bertha Hammond, Esther E. Hopkins, Elizabeth B. Luttrell, Ira W. Hopkins, Mary E. Hopkins, and Thomas J. Luttrell were duly filed, denying specifically the different allegations of fraud. They admitted that Chapman purchased for the benefit of the trustees, and one of them, but with the knowledge and acquiescence of all parties interested, and the circumstances in reference to the sale were thus set forth in the answer of Bertha Hammond:
"Further answering, on information and belief, the matters alleged in the three foregoing paragraphs, I say that the said George W. Hopkins and the testator, John Hopkins, were partners in trade for years before the death of the latter, and that their business consisted in the manufacture of bricks, and that the property mentioned was purchased in the years 1849, 1854, and 1855, for the purposes of their said business, and used for such purposes, so far as required, until the death of the said John Hopkins, and afterwards, in pursuance of the provisions of his last will and testament, until the youngest child, Alice, had attained the age of eighteen years, which event occurred in April, 1864; that until such time, the business of brickmaking had continued as before the death of the testator, in pursuance of the provisions of his will, but under the authority thereby conferred it had been necessary to dispose of some few pieces of ground, the purchase money whereof was duly accounted for; that upon the happening of such event -- the period fixed by the will for the division of the estate -- the children of the said testator were eager to obtain their respective shares of the estate; that it was well known to all the said children that the said George W. Hopkins and John S. Hopkins proposed to continue the said business, and to that end to purchase the necessary parcels of ground at the prices at which the same should sell at public auction; that the said children were not only willing but desirous that the business should be continued and the necessary purchase made, their only interest being in obtaining the best prices; that in
order to obtain such prices, the whole title to the property was sold, as well the interest of the said George W. Hopkins as of the testator; that the said sale was of the property in separate parcels, and was in all respects fairly conducted, and that the prices obtained were the full value of the property; that the said George W. Hopkins and John S. Hopkins bought with full knowledge and consent of the said children, and duly accounted for the purchase money; that at the time of the sale, the property, except where the residence of George W. Hopkins stood in square 111, was a common, the streets of the city not having been opened, and the kilns for burning bricks standing on square 94; that there were no circumstances of suppression or concealment, but the deed to James Chapman, placed upon record, on its face showed only a nominal consideration, and that all parties interested well knew that said Chapman bought for the benefit of the said George W. Hopkins and John S. Hopkins, and that the latter, after the said purchase, continued the said business with the knowledge and acquiescence of the said children of the testator until the death of the said George W. Hopkins, in 1875."
The answers averred that the account of the trustees and executors was properly in bar the order of that court, carried into in bar the order of the court, carried into execution by the parties interested. The matters in excuse of laches were denied, and the great length of time, the death of parties and witnesses, the increase in value of the property, and other circumstances, were set up as an equitable bar.
July 8, 1884, and amendment was filed as to paragraphs 10 and 13 of the bill. These amendments alleged prearrangement to prevent competition, and that squares 95 and 96 were offered and sold as an entirety, and thereby brought a price far below what they would have brought if advertised to be sold and sold in lots; that the time was unpropitious for a sale, etc., and that the trustees had appropriated to themselves part of the personal property belonging to the brick kiln business, and notice, either actual or constructive, of the proceedings in the orphans' court was denied.
These amendments were answered by the principal defendants,
and the allegations denied, the defenses reiterated, and the want of explanation of laches set up.
June 4, 1885, paragraph 13 of the original bill was again amended by charging that the order of settlement and distribution of the orphans' court was fraudulently obtained in that neither of the trustees made known to the court the nature of their trust, if the accounts included the proceeds as well as the sales of the real estate, nor informed the court of their fraudulent conduct in regard to the sales, nor that any notice, either actual or constructive, had been given the complainants of the settlement and distribution of the estate, and prayed that the order of distribution might be disregarded and set aside, and distribution made of the estate as by law it should be, and the defendants by prohibited from availing themselves of the fraudulent settlement and distribution. Paragraph 16 was also amended by adding that the trustees failed to account for the sale of lots 12, 13, 14, 15, 25, 26, 29, and 40 of square 110, and had sold and fraudulently paid over to George W. Hopkins one-half of the proceeds of lots 3, 4, and 5, in square 67.
The principal defendants answered these amendments and traversed their allegations. They admitted the sale of the lots in square 110, which were made before May 10, 1864, and averred that the proceeds had been accounted for. They further averred that lots 3, 4, and 5, in square 67, belonged to George W. and John S. Hopkins in common; that the said George W. and John S. Hopkins were partners in the brickmaking business prior to 1858, and that these lots were acquired for the purposes of said business, and were so used by them, and that the proceeds of sale were duly accounted for. Replications to all the answers were filed. The cause came on to be heard in special term, before Mr. Justice Merrick, and the bill as amended was decreed to be dismissed, with costs. The opinion appears in the record.
On appeal, the court in general term reversed the decree of the special term and adjudged that the sales to Chapman of May 10, 1864, were fraudulent and void, and that the deeds from the trustees to Chapman, and from Chapman to George
W. and John S. Hopkins as individuals, and the deed from Chapman to George W. Hopkins individually were null and void, and that the same be set aside. It was further adjudged that the title of the defendants to the real estate remaining unsold should be divested, and that the defendants should account to the complainants before the auditor for the purchase moneys arising from all sales made by the trustees of portions of the real estate bought through Chapman, with interest, and also for the purchase moneys arising from all sales made by the defendants, and also for all rents and profits received by the defendants. In the account the one-half of the proceeds of the sale of lots 3, 4, and 5, square 67, received by George W. Hopkins, with interest from June 18, 1872, was directed to be included. And the decree provided for a partition or sale of the unsold real estate, with directions to the auditor as to the mode of dividing the proceeds if a sale should take place.
From this decree the defendants, and each of them, prayed an appeal to this Court, which was allowed.
It appeared from the evidence that George W. Hopkins and John Hopkins were brothers and co-partners in the business of manufacturing bricks, and for the purposes thereof acquired and used certain squares of ground in the City of Washington on which there were clay deposits. As early as 1846, they carried on the business on square 67, and in July, 1849, purchased squares Nos. 94, 95, and 96 at a cost of between one and two cents per square foot. Their office and stable were on square No. 94, and their kilns and drying sheds on squares Nos. 95 and 96. August 9, 1854, they purchased square 111, on which was a brick dwelling house at the price of five cents per square foot, and on December 27, 1855, square 110 at two cents per square foot. By the deeds for these squares, the property was conveyed to the grantees in fee simple as tenants in common. Immediately after the purchase of square 111, George W. Hopkins moved into the dwelling house thereon, and resided there until his death in 1875. On the 27th of November, 1858, John Hopkins died, leaving the last will and testament attached to the bill, which was duly admitted to
probate by the orphans' court December 4, 1858, and George W. and John S. Hopkins qualified thereunder as executors December 14th, and the business was conducted as before.
The family of John Hopkins consisted of nine children, one of whom, Levin, died in 1863, unmarried and intestate, and his share devolved upon the other children, so that when Alice attained the age of eighteen on April 13, 1864, the estate of John Hopkins was represented by the eight surviving children, his devisees and next of kin. His estate consisted mainly of his undivided moiety of squares 94, 95, 96, 110, and 111.
On September 16, 1859, George W. Hopkins, in his own right, and he and John S. Hopkins as executors, made a subdivision of the original lots in square 110, and subsequently sold at different times a number of the subdivision lots. On April 13, 1864, there were unsold in this square the following lots: 8, 9, 10, 15, 16, 17, 18, 19, 20, 21, 24, 36, 37, 38, 39, 42, 43, 44, and 45. John Hopkins resided in Georgetown at the time of his death, and his children, or some of them, continued to reside there until 1862, when they removed to the dwelling house on square 111, occupied by their uncle, George W. Hopkins. When Alice attained the age of 18, the seven other children were of about the following ages: Isaac H., 40; Elizabeth A. Early, 39; John S., 37; Emeline V. Lilburn, 36; George Washington, 35; William M. S., 33; Mary V., 25. Mrs. Lilburn lived in St. Mary's county, Md. and Elizabeth A. Early, Mary Victoria, Alice C., John S., and Isaac H. Hopkins lived with their uncle, George W. William M. S. and George Washington lived elsewhere in Washington. Mary subsequently married one Wailes, and Alice one James R. Hall.
Under the will, upon the arrival of Alice at the age of eighteen years, the estate was to be divided, and in order to do this, it seems to have been deemed advisable to sell the undivided moiety of the real estate. The other undivided moiety belonged to George W. Hopkins, and the trustees and executors, instead of selling one moiety, advertised and sold the whole interest in the property, as well that owned by
George W. as that owned by the estate. The advertisement bears date the 20th of April, 1864, and advertises the sale at public auction for the 10th of May following. This advertisement has already been set forth, and under it squares 95 and 96, known as "Hopkins' Brick-Yard," were, with the outfit, advertised to be sold as a whole, as was also square 111, with the dwelling house and other improvements. At the sale, the trustees purchased the squares 95 and 96 at four cents per square foot; lot No. 1 in square 94 at ten cents per square foot, and lots 16, 17, 19, 20, 22, and 39, in square 110 at eight and one-half cents per square foot. George W. bought square 111 at nine cents per square foot. These purchases were made through one James Chapman, who acted on behalf of the purchasers. Lot 6, in square 94, was sold to August Miller at thirteen cents per square foot; lots 2, 3, and 4 at ten and one-half cents, and lot 5 at fourteen cents. Lots 8 and 9, in square 110, were sold to James L. Roche at eleven cents per square foot; lots 10 and 24, to Joseph Gawler at ten cents; lots 36 and 37, with improvements at $290 apiece; lots 41, 42, 43, and 44, to W. C. Longstreth at six and one-half cents per square foot. On May 20, 1864, the property in question was conveyed by the trustees to James Chapman, and he on the same day conveyed to George W. and John S. Hopkins the squares and lots purchased by them jointly, and to George W. the square purchased by him alone. The deeds were recorded November 16, 1864. The consideration in the conveyance to Chapman was merely nominal -- one dollar -- while the considerations in the deeds from him recite as paid by the grantees the price for which the property was purchased at the sale. On August 23, 1864, orphans' court passed an order appointing September 13, 1864, as the time for the final settlement and distribution of the personal estate of the testator, and notifying his devisees and heirs to attend the court on that day. The copy of the order was published, in accordance with the direction of the court, in the National Intelligencer, nine times, commencing August 24 and ending September 12, 1864.
It appears by the minutes of the court that on March 28, 1865, the register of wills reported to the court the first and final account of the executors, and the same was approved and
passed by the court, and it was ordered that "the executors aforesaid make distribution of the assets in hand to the heirs in accordance with the provisions of the will of the deceased." This account treated the moiety of the proceeds of the sale of the real estate, including the sale of May, 1864, as partnership property, to be accounted for in the orphans' court as personalty. In the account, the executors charged themselves with the amount of the inventory, a policy of insurance, certain sums paid for slaves emancipated in the district, and some items of interest, etc. The debit account amounted to $24,155.59, and contained this item:
"And with this amount, being one-half the earnings of firm of J. & G. W. Hopkins in conducting the brick kiln, owned in part by deceased, from the day of his death to date of rendering this account, first deducting the expenses of the family of deceased and other expenses, directed by the will of said deceased to be defrayed out of said earnings, and also the value of deceased's interest in said firm, as per affidavit filed with vouchers, $14,952.66."
The credits amounted to $2,024.13. No commissions were charged, and the balance shown was $22,131.46. This was followed by a distribution account, which after deducting $8 fees from the balance $22,131.46, and $782.60 paid out on specific legacies, left $21,340.86, which was distributed among the eight surviving children of the decedent, namely Isaac H. Hopkins, John S. Hopkins, Elizabeth A. Early, George W. Hopkins, William M. S. Hopkins, Emeline V. Lilburn, Mary V. Hopkins, and George W. Hopkins, being the sum of $2,667.60 3/4 each. This account was filed and recorded March 28, 1865, and passed by order of court.
The affidavit and vouchers mentioned do not appear in the record, and it is said that after diligent search, they cannot be found. Within a few days after the passage of the order, distribution was made and the receipt of the different parties entitled were delivered by the executors to the register and by him recorded. The share of William M. S. was receipted for by John S.; the share of Alice, receipted for by the executors, was by them held in trust until she attained the age of 21,
and was afterwards paid to her and her husband. After the sale of May 10, 1864, George W. and John S. Hopkins carried on the brickmaking business on squares Nos. 95 and 96, and lot 1, square 94, until as late as 1873, and probably as 1875, when George W. died. After his death, John S. field a bill for the partition of the property owned in common, the other lots purchased in common having been sold, and by the decree of the court below of February 27, 1877, lots 1, 2, 3, 4, and 6, in square 95, and lots 5, 6, 7, 8, 9, and 10 and 11, in square 96, were allotted to him in severalty. Lot 1 in square 94, and lot 5 in square 95, and lots 1, 2, 3, 4, 12, 13, 14, 15, and 16, in square 96, were allotted to the heirs of George W. Hopkins. Thereafterwards the children and heirs at law of George W. filed a bill for the payment of his debts and for a partition of the property allotted to them in the first suit, and also of square 111, where he resided until his death, and a decree was rendered in which a part of the property was sold for the payment of debts, and the remainder allotted to the heirs at law in severalty. Nearly all of the lots thus allotted had been sold when the bill in this case was filed. John S. Hopkins, the other trustee, died intestate May 7, 1883. He left a widow, Esther E. Hopkins, and an only child and heir at law, Bertha Hopkins, who was at that time twenty-five years of age. After the partition between John S. and the heirs at law of George W., John S. built a row of houses on the lots in square 96 at a considerable cost. None of the property allotted to him in the partition suit was sold by him prior to his death except the east part of square 95.
As already stated, George W. and John Hopkins, in 1846, carried on their business on square 67, and in 1869, after the death of John Hopkins, a deed was made by Charles E. Mix to George W. Hopkins and John S., as executors and trustees, for lots 3, 4, and 5 in said square. These lots were sold and conveyed by the executors and trustees, June 18, 1872, for $6,784, and of these proceeds George W. received one-half as co-partner, or $3,392, and the other half was paid over to the beneficiaries entitled, who duly receipted for their respective shares in full of all demands to date. The share of George
Washington Hopkins was receipted for by Mary A. Hopkins, his administratrix.
June 20, 1860, William M. S. conveyed in fee simple all his interest in his father's estate to his brother John S. for the consideration, as expressed in the deed, of $3,000. This deed was also signed by Sarah E. Hopkins, the wife of the grantor, and was acknowledged on the day of its date by the grantor and his wife before two justices of the peace, and recorded July 7, 1860. By deed dated January 28 and acknowledged, and recorded January 29, 1864, William M. S. conveyed the same share, with all his property, to Christopher Ingle in trust for his wife for life, and then over to his children and himself.