When the defendant's answer in a chancery suit sets up matters
which are impertinent, and he also files a cross-bill making
allegations of the same nature, a demurrer to the cross-bill on
that ground should be sustained.
The findings of fact in an appeal from the supreme court of a
territory are conclusive upon this Court, whose jurisdiction on
such appeal, apart from exceptions duly taken to rulings on the
admission or rejection of evidence, is limited to determining
whether the findings of fact support the judgment.
It being found that the defendant converted the entire assets
which are the subject of this controversy, there was no error in
charging him with interest on the amount so converted, without
regard to whether he did or did not make profits.
The solicitor was properly allowed a fee from the fund.
An item in the decree below which was not appealed from by the
complainant is not before this Court for consideration.
A clerical error in the decree of the court below caused by the
omission of the name of one of the distributees can be corrected,
on application, by the court below after the case is sent down.
The costs in this Court must be paid by Harrison personally.
The bill in the first above entitled suit was filed in a
district court of the Territory of New Mexico, in chancery, by
Pedro Perea, as sole surviving administrator of the estate of Jose
L. Perea, Second, deceased, and as one of his heirs at law, against
the defendant George. W. Harrison, individually and as
administrator of the estate of his wife, Guadalupe Perea De
Harrison, and also against the other heirs at law of Jose L. Perea,
Second. It was brought to compel an accounting by the defendant
George W. Harrison, individually and as administrator of the estate
of his wife, for the property and assets of the estate of Jose L.
Perea, Second, which had come into his hands.
The bill, in substance, alleged the following facts: Jose
Page 168 U. S. 312
Perea, Second, a resident of New Mexico, died in that territory
on the 27th of August, 1887, being about the age of eight years. He
left, him surviving, his mother, Guadalupe Perea, who was then a
widow, and his half brothers and sisters, as his heirs at law. On
the 23d of July, 1884, his mother had been appointed his guardian,
and had taken possession of his property. In September, 1885, she
married the defendant George W. Harrison. She continued guardian of
her son up to his death, in August, 1887. In September, 1887, the
complainant was appointed administrator, and the mother was
appointed administratrix of the estate of the minor. They both gave
bonds, and took the requisite oaths. On the 6th of March, 1888, the
mother made what she termed a final report of her guardianship to
the probate court, which showed a balance of over $17,000 in her
hands belonging to the estate of the minor. Under the influence of
her husband, she claimed, from the time of her son's death down to
her own decease, to hold the property as guardian, and not as
administratrix, and, while acting under that influence, she refused
to permit the complainant, after his appointment as administrator,
to assist in the administration of the estate or to have possession
or control over any of its assets. Objections were made by the
complainant to the report filed by the mother in March, 1888,
called the guardian's final account, and these objections were
sustained by the probate court. An appeal from that order was taken
by the mother, but no further proceedings were had therein, and the
same was practically abandoned. The mother died October 20, 1889.
Her husband then unlawfully took possession of the property of the
minor in her hands at the time of her death, and subsequently, and
on the 6th of January, 1890, he took out letters of administration
on her estate, she dying intestate. He then claimed to hold the
estate of the minor by reason of being administrator of his wife's
estate. He took possession of the minor's estate individually, with
full knowledge of its trust character, placed it to his own credit
in bank, mingled it with his own funds, and claimed the right to
retain possession and control thereof, and refused the demand to
pay over the estate to him, which
Page 168 U. S. 313
the complainant made in his capacity as sole surviving
administrator of the estate of the minor. It was also alleged that
the mother of the deceased minor, acting under the influence and by
the direction of her husband, and the defendant Harrison himself,
individually, did by their actions cause great damage to the estate
of the minor, and relief was demanded against the defendant
Harrison, as administrator of his wife's estate and individually,
for an accounting in relation to the estate of the minor, of which
he was in possession, and for a recovery of the amount found to be
in his possession.
The defendant Harrison demurred to the bill. His demurrer was
overruled, and he then answered both individually and as
administrator of the estate of his deceased wife. In that answer,
the defendant denied many of the material allegations contained in
the bill. He alleged that he and the defendant Grover William
Harrison, who was minor child of himself and his deceased wife,
Guadalupe Perea De Harrison, had succeeded to all the interest and
rights of his said wife in and to the property of the estate of
Jose L. Perea, Second, and for that reason the complainant was not
entitled to a decree for anything upon the accounting. The answer
also alleged that the complainant was a son and also one of three
administrators of the estate of the late Jose L. Perea, Senior (two
of complainant's brothers being the other administrators), and that
those administrators had failed to account for a large sum of money
which was due from the estate of Jose L. Perea, the elder, to Jose
L. Perea, Second, in his lifetime, and afterwards to his estate,
and it was alleged that large amounts of property had come into the
hands of such administrators of the estate of the deceased father,
Jose L. Perea, Senior, of which no account had been made, and that
the
pro rata share of the minor, Jose L. Perea, Second, in
these assets so unaccounted for, would amount to $30,000.
The complainant excepted to so much of the answer as contained
the above allegations relating to the estate of the elder Perea and
the action of the administrators with regard thereto, upon the
ground of impertinence.
The defendant, by leave of court, also filed a cross-bill in
Page 168 U. S. 314
which, in very great detail, he set forth the condition of the
estate of the elder Perea and the action of the administrators
thereof. Among other things, it was alleged that the elder Perea,
in 1842, married his first wife, and they lived together until
1877, when she died; that he had by her six daughters and six sons,
and that he brought into the marriage community a large amount of
property, real and personal, amounting to $100,000, acquired by him
by inheritance, bequest, and other means, and, in addition,
personal property of the value of about $300,000, and that, at the
time of his marriage, his wife owned in her own right, and brought
into the marriage community, real property situate in the Territory
of New Mexico, of the value of $30,000, and personal property of
the value of $30,000; that this property of the husband and wife
became upon their marriage property of the marriage community, and
so continued to remain the property of the parties, to which large
accretions and additions were made by the industry and labor of the
husband and wife, so that, at the time of the death of the wife in
1877, the full value of the united property was $300,000 of realty,
and $500,000 of personalty, and that all of this property, except
the amount brought into the marriage community, was gain and
increase of that property, and belonged in equal parts to the
husband and wife.
It was further alleged that in 1883, the elder Perea died, and
that his estate had not been properly administered; that property
belonging to the estate had not been inventoried as such; that the
conduct of the administrators had been wasteful, the estate had not
been properly taken care of, and that the administrators had
expended large amounts of the community property in the purchase of
real property, so that such property had been unlawfully converted
into worthless real property. It was also alleged that a pretended
settlement had been made before the probate judge in New Mexico,
and the administrators had made an accounting before the court, and
had obtained their discharge and the cancellation of their bonds by
that court; that this settlement before and discharge
Page 168 U. S. 315
by the probate court was a fraudulent one, and fraudulently
obtained, and that the decree should be set aside. It was also
alleged that the defendant Harrison and his wife had before her
death commenced a suit against the complainant and the other
defendants, who were administrators of the estate of the elder
Perea, asking for an accounting in regard to the identical matters
and things set up in this cross-bill, and that such suit was still
pending and undetermined at the time of the commencement of this
suit by the complainant herein.
Various other matters in relation to the management of the
estate of the elder Perea were set forth in the cross-bill at very
great length, and relief was demanded in accordance with what was
alleged to be his rights by such complainant. This relief was of
all varieties, including an investigation into accounts and matters
relating to community property arising out of the marriage of the
elder Perea in 1842, and an inquiry as to what was such property
and its proper increase; also injunctions, accountings, decrees for
conveyance, for distribution, for removal of the administrators;
for the annulling of the pretended and fraudulent decree
discharging the administrators, and finally settling their
accounts, and for the appointment of a receiver of the estate of
the elder Perea.
To this cross-bill the complainant herein demurred upon several
grounds, the substance being that it was multifarious in that it
was brought in regard to matters having no connection with the
subject matter of the original bill, and not proper to be
investigated in this suit.
The exceptions to the answer and the demurrer to the cross-bill
were argued at the same time, and, after hearing counsel, the court
allowed the exceptions, and struck out the matter excepted to, and
it also sustained complainant's demurrer to the cross-bill.
The case, then being at issue, was duly referred to a master,
before whom both parties appeared and introduced their proofs,
after which the master made his report. Upon that report and the
evidence taken before the master, the case was brought to a
hearing, and the court found, in substance, that the allegations
set forth in complainant's bill were true. The
Page 168 U. S. 316
court also found that Jose L. Perea, Senior, died about the 21st
day of April, 1883, and left his widow, Guadalupe Perea (who
afterwards married the defendant George W. Harrison), and the other
defendants in this suit, with the exception of George W. and Grover
William Harrison, his heirs at law. Jose Perea, Second, was the son
of the elder Perea, by his second wife, Guadalupe Perea. After the
death of the elder Perea, his widow married, as heretofore stated,
the defendant George W. Harrison, and by him she had issue, Grover
William Harrison, one of the defendants herein. With these
exceptions, all of the defendants were children of the elder Perea
by a former wife. Pedro, Mariano, and Jesus M. Perea were appointed
administrators of the estate of their deceased father.
The court also found that the defendant George W. Harrison, not
only upon the death of his wife had control, but that immediately
after their marriage, he took control and charge of the assets of
the deceased minor, and at the time of the entry of the decree
herein, he still retained and had possession of all the moneys
belonging to that estate, and that they were subject to his
individual control.
At the time of the death of the minor, he owed no debts, and
there were no charges against his estate except his funeral
expenses and the expenses of his last illness and certain claims
for his maintenance by his guardian. The defendant George W.
Harrison, in the name of his wife and in her lifetime, made sundry
reports to the probate court as to the condition of the estate,
some of which contained false entries to her advantage, and
together they obstructed the distribution of the estate among the
heirs.
The court also found that George W. Harrison, the defendant,
willfully obstructed the distribution of the assets of the estate
of the minor, and by his misconduct rendered it necessary that the
complainant should obtain possession of the assets by the
institution of this suit, and that the necessity for this suit
arose entirely out of the wrongful conduct of the defendant
Harrison.
The amount found due from the defendant to the complainant
Page 168 U. S. 317
was stated in the decree to be, with interest up to the date of
the entry of the decree, June 19, 1893, the sum of $31,545.32, of
which the defendant Harrison was entitled, as administrator of the
estate of his late wife, Guadalupe Perea De Harrison, to 13/26, and
to 3/26 in addition by reason of the purchase of the interests of
some of the heirs of the estate of Jose L. Perea, Second, and to
1/26 more as guardian of Grover William Harrison, one of the
defendants, being a total of 17/26, and the other heirs were each
decreed entitled to 1/26 of such balance, and it was provided in
the decree that the defendant Harrison might, instead of turning
over to the complainant, the administrator of Jose Perea, Second,
the full sum found due, retain the amount found due him from the
estate, which was stated to be the sum of $16,227.19. The defendant
George W. Harrison was also charged with the payment of the costs
of the suit individually, including the sum of $1,000 allowed the
special master.
From the final decree thus entered, the defendant George W.
Harrison appealed to the Supreme Court of the Territory of New
Mexico, which court, with some modifications, affirmed the judgment
of the court below. Those modifications consisted in charging
interest upon the full amount of the sum found due by the decree of
the court below, from the time of the entry of that decree up to
the 26th of August 1895, which amounted to the sum of $4,324.45,
and the defendant was charged in the decree of the last-named date
with the full sum of $35,869.77. The fee for the solicitor of
complainant was reduced from $5,000 to $3,586.97, being ten percent
upon the amount found in the hands of the defendant Harrison. The
complainant, as administrator, was decreed to be entitled to the
statutory commission upon the last-named sum found by the court to
be due from the defendant Harrison, which commission amounted to
$1,943.48. The court also reduced the compensation of the special
master from $1,000 to $500. The court also modified the decree
against Harrison for the payment of costs individually by
directing
"that the
Page 168 U. S. 318
said solicitor's fee, the said commission for said
administrator, the said special master's fee, and all of the costs
of this case in this Court and in the court below, should be paid
out of said fund, and that of the remainder the said defendant
George W. Harrison may retain in his possession seventeen
twenty-sixth parts thereof, and that he shall pay over to said
Pedro Perea, as administrator of Jose L. Perea, deceased, the
remaining nine twenty-sixths, to be distributed to the heirs at law
of said Jose Leandro Perea, Second,"
as directed by the court. From the judgment of affirmance as
modified, the defendant George W. Harrison has appealed to this
Court. The complainant also took a cross-appeal from the
judgment.
MR. JUSTICE PECKHAM, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The question first arising in this case is in regard to the
correctness of the decisions of the courts below in allowing
complainant's exceptions to portions of the answer of the defendant
Harrison, and in sustaining the demurrer to defendant's cross-bill.
The decision of the two matters rests in this case upon essentially
the same foundation. If the allegations of the defendant's answer
to the original bill are impertinent, it would follow that in this
case the cross-bill would be multifarious, and that the demurrer on
that ground should be sustained. The allegations in the two
pleadings are of the same nature, only in the cross-bill they are
very greatly extended, and set forth in almost infinite detail.
Impertinence is described by Lord Chief Baron Gilbert to be:
"Where the records of the court are stuffed with long recitals
or with any digressions of matter of fact which are altogether
unnecessary and totally in material to the matter in question."
1 Daniell's Chancery Pl. & Pr. (5th Am. ed.) marg. p. 349.
It is also said that impertinence is the introduction of any
matters in a bill, answer, or other pleading
Page 168 U. S. 319
in the suit which are not properly before the court for decision
at any particular stage of the suit.
Wood v. Mann, 1
Sumner 578.
"The best test to ascertain whether matter be impertinent is to
try whether the subject of the allegation be put in issue in the
matter in dispute between the parties."
All matter not material to the suit is regarded as impertinent.
1 Daniell,
supra, 349, note.
As to multifariousness, it was said in
Shields v.
Thomas, 18 How. 253,
59 U. S.
259:
"There is perhaps no rule established for the conducting of
equity pleadings with reference to which (whilst, as a rule, it is
universally admitted) there has existed less of certainty and
uniformity in application than has attended this relating to
multifariousness. This effect, flowing, perhaps inevitably, from
the variety of modes and degrees of right and interest entering
into the transactions of life, seems to have led to a conclusion
rendering the rule almost as much an exception as a rule, and and
that conclusion is that each case must be determined by its
peculiar features. Thus, Daniell, in his work on Chancery Practice,
vol. 1, p. 384, quoting from Lord Cottenham, says:"
"It is impossible from the authorities to lay down any rule or
abstract proposition as to what constitutes multifariousness which
can be made universally applicable. The cases upon the subject are
extremely various, and the court, in deciding upon them, seems to
have considered what was convenient in particular cases, rather
than to have attempted to lay down an absolute rule."
Continuing his opinion, the learned justice in the above case
said:
"Justice Story, in his compilation upon Equity Pleading, defines
multifariousness in a bill to mean 'the improperly joining in one
bill distinct and independent matters, and thereby confounding
them.' . . . Justice Story closes his review of the authorities
upon this defect in a bill with the following remark:"
"The conclusion to which a close survey of the authorities will
conduct us seems to be that there is not any positive inflexible
rule as to what, in the sense of a court of equity, constitutes
multifariousness, which is fatal to a suit on demurrer."
Upon consideration of the various cases, we think that in
Page 168 U. S. 320
allowing the exceptions to the answer and in sustaining the
demurrer to the cross-bill, the courts below committed no error.
The facts which the defendant Harrison endeavored to set up in his
answer and cross-bill were not relevant to the matters properly in
issue in this suit. Neither the convenience of the parties nor
their rights in regard to the matters set forth in the original
bill would be aided by entering upon an inquiry relating to the
matters set up in the answer and cross-bill. It is clear that an
investigation and accounting, such as is asked for in the
cross-bill, would take a long time, probably many years, to finish,
involving as it would an inquiry into the amount of the community
property of the elder Perea and his wife in 1842, and what should
be found to be the actual increase springing from the same; also an
inquiry into the transactions of the administrators of the estate
of the elder Perea, and into their liability on account of the
same, together with the taking of evidence upon the subject of the
fraudulent character of the decree of the probate court discharging
the administrators of that estate. It would in addition include an
inquiry into the question whether the administrators, if the decree
were set aside, had been guilty of such conduct in the care and
management of the estate coming into their hands as would make them
liable for any loss sustained by the estate in consequence of such
action. In fine, it is seen that the character of the investigation
demanded by the cross-bill and of the relief sought thereby are
extensive enough to call for an almost interminable amount of
research and labor. These considerations are not of the slightest
moment when weighed against the legal rights of the parties
interested in the question and their right to have such
investigation made and adequate and proper relief granted is not a
matter of discretion or of favor. If they have not slept upon their
rights, and if they come into court at the proper time and in a
proper action, the court will enter upon the necessary
investigation and grant such relief as they may be entitled to. On
the other hand, these considerations are most material and vital
upon the question of the necessity or propriety of such an
investigation in this suit, which was
Page 168 U. S. 321
brought for a different purpose, and which would be necessarily
greatly delayed in its termination if such an inquiry should be now
entered upon.
Let us look for a moment at the simple character of this suit.
It is brought to recover, as administrator, the assets of the
estate of the minor already mentioned, the possession of which the
defendant Harrison does not deny. He shows no right to them as
against the complainant, because the facts he sets up in his answer
form no defense. Nor do the same facts, when set forth in the
cross-bill, constitute a cause of action against this complainant,
proper to be proved and defended against in this suit, as against
the demand of the complainant herein. It is plain that the
complainant, as the surviving administrator of the estate of the
deceased minor, was entitled to the immediate possession of all the
assets of such estate. Upon the death of the minor, the
guardianship of the mother ceased, and, as she was thereupon
appointed administratrix, her continuing to hold the assets of the
estate from the time of such appointment was as administratrix, and
not as guardian. The counsel for Harrison says in his brief that he
is disposed to concede this proposition. It is plainly true. Her
right or duty to account as guardian did not affect the title to
the property upon the death of the ward. That title became vested
in the administrator and administratrix upon their appointment. 1
Williams on Executors (6th Am. ed.) 696. The plaintiff herein, as
co-administrator, had the same legal title to the assets that she
had. The advantage of possession was with her. But on the death of
the administratrix, the complainant remained the sole surviving
administrator, and in him was vested the exclusive title and the
right to the immediate possession of the assets of the estate of
the deceased minor. Instead of obtaining that possession, he finds
all the assets in the hands of the defendant Harrison, who refuses
to give them up. Their amount is not really in controversy. The
defendant shows no right or title whatever to them. It is no answer
to the demand that the defendant should pay over the sum which is,
in substance, acknowledged to be in his possession, to say that
the
Page 168 U. S. 322
minor's estate may be increased after an accounting shall be
had, and judgment obtained, and the money paid over in the matter
of the estate of the elder Perea. The claim upon that estate, so
far as the defendant Harrison is concerned, either individually or
as administrator of his deceased wife, is altogether too remote and
too disconnected from the issues properly joined in the original
suit herein to make it necessary, on his demand, to turn aside from
their decision until that claim shall be hereafter and in this suit
determined. It would be entering upon an investigation into matters
connected with a different estate, an inquiry into which would
involve innumerable questions which would have no bearing upon the
decision as to the right of defendant to retain these particular
funds now in his individual possession, and treated by him as his
own.
It must also be borne in mind that the defendant Harrison has an
action pending against the complainant herein and the other and
surviving administrator of the estate of the elder Perea, together
with his other heirs at law, in regard to these very matters which
are set up in his cross-bill herein. Indeed, this cross-bill
contains nothing material beyond the allegations which are
contained in the complaint in his first suit. The allegations in
that suit are reintroduced in the cross-bill word for word, and the
relief prayed for in the cross-bill is the same. From all the facts
thus appearing in complainant's original bill, and in the answer
and the cross-bill of the defendant Harrison, it is plain that the
matters set up in the answer and in the cross-bill in regard to
which the defendant seeks investigation in this suit are not proper
subjects of inquiry herein, because not connected with the issues
sought to be decided in the original bill, and it would result in
great and unnecessary delay in the decision of this suit to reverse
this judgment, and direct an investigation into matters which are
foreign to its merits. We are of opinion the court below committed
no error in allowing complainant's exceptions to the answer and in
sustaining his demurrer to the cross-bill.
The decision thus arrived at includes the main question in the
case. There are some few other matters to be reviewed.
Page 168 U. S. 323
Our further examination must proceed upon the finding of facts
as made by the court below, for, this being an appeal from the
supreme court of a territory, those findings are conclusive upon
this Court. The jurisdiction of this Court on such an appeal, apart
from exceptions duly taken to rulings on the admission or rejection
of evidence, is limited to determining whether the findings of fact
support the judgment.
Stringfellow v. Cain, 99 U. S.
610;
Neslin v. Wells, 104 U.
S. 428;
Eilers v. Boatman, 111 U.
S. 356;
Idaho & Oregon Land Company v.
Bradbury, 132 U. S. 509;
Mammoth Mining Company v. Salt Lake Machine Company,
151 U. S. 447,
151 U. S. 450;
Haws v. Victoria Copper Mining Company, 160 U.
S. 303;
Gildersleeve v. Mining Company,
161 U. S. 573;
Bear Lake & River Water Works & Irrigation Company v.
Garland, 164 U. S. 1,
164 U. S. 18.
Objection is made to that portion of the decree which holds the
defendant Harrison liable as an individual for the repayment of the
amount of the assets of the estate found in his possession. The
findings of fact amply justify this action of the court. It is
found that immediately upon the intermarriage of the defendant
Harrison with the widowed mother of the minor, he took entire
charge and control of her affairs, including the assets of the
minor's estate; that he reduced them to money, mingled the same
with his own funds, deposited them in bank to his individual
credit, and at the time of the final decree, he retained the same,
subject to his individual control. The court also found that he
made reports in the lifetime of his wife, and in her name, to the
probate court, which contained false entries to the advantage of
his wife, and that together they obstructed the distribution of the
estate among the heirs; that, upon the death of his wife, on the
20th of October, 1889, he was in possession of these assets, with
full knowledge of their trust character, and after her death he
refused to pay over on demand, to the complainant, as the sole
surviving administrator of the estate of the minor, the assets
pertaining to that estate. These facts show a persistent,
deliberate, and successful attempt to secure and retain the assets
of this estate and to convert them to his own use
Page 168 U. S. 324
individually. The facts found show that he was guilty of such
conversion. Cases are cited by defendant's counsel where payments
wrongfully made by an administrator to a third person could not be
recovered directly from such third person at the suit of a creditor
of the estate, the estate itself not being insolvent. Those cases
and the one at bar have no resemblance to each other. This is a
case where the whole assets of the estate have been wrongfully and
knowingly taken and converted to the individual use of this
defendant, and the action is brought to recover the same by the
sole surviving administrator of the estate. Nor is it a question of
following the specific property which was taken by the defendant.
The finding is that he reduced the assets and property of the
estate to money, and mingled the same with his own funds, and has
kept control of them ever since. The question of identification has
nothing to do with the case. It is a bald case of the conversion of
the whole estate of the minor, and his liability to pay it back is
plain and clear.
Nor did the court below err to the prejudice of the defendant in
the matter of charging him with interest at six percent on the
amount of the assets converted by him. The interest is charged by
reason of his conversion of the whole assets of the estate. It is
not a mere mingling of the funds with his own while recognizing his
liability to repay them, and having them at the same time ready to
respond when demanded. It is a wholesale conversion of the entire
assets. The facts found make the inference perfectly clear that
such conversion was intended from the time of his marriage with the
mother of the minor. His false entries in the reports are very
strong evidence in that direction.
Neither is it a question of what profits, if any, have been made
by an individual who has mingled trust funds with his own and used
them for his personal benefit, although never denying his liability
to account. In such cases, it is sometimes proper to inquire what
profits have been made in order to charge the trustee with their
amount, if greater than the usual rate of interest. This is not
such a question. The defendant has, without the least right or
title, taken moneys
Page 168 U. S. 325
belonging to the estate of a deceased minor and converted them
substantially to his own use, while denying the right of the
administrator of such estate to the possession thereof. He is
properly charged at least with the usual interest without
investigation into the question of what profits he may have
made.
That portion of the decree which authorizes the complainant, as
administrator, to retain his statutory commissions upon the full
fund found due from the defendant is objected to, and the claim is
made that he is not entitled to commission on any other sum than
that which he actually receives and pays out. The decree determines
the amount due from the defendant to the complainant as
administrator. Strictly speaking, the complainant was entitled to a
decree for the payment of that full sum by the defendant, after
which he would be paid the distributive share legally coming to
him. If that course had been followed and such a decree given, the
complainant would have been entitled to his statutory fees, as
administrator, upon the amount thus paid in; but, by the favor of
the court, the defendant Harrison was permitted, instead of making
this formal payment, to retain in his possession the 17/26 of the
estate which the court decided he would be entitled to receive from
the administrator upon his making distribution of such estate to
the parties entitled to it. The court, in pursuance of this course,
did not relieve the estate from the payment of the full amount of
the commissions of complainant as administrator which he would have
been entitled to had the amount which the defendant retained been
actually and physically paid over into his hands. As to this, the
defendant has no good ground of complaint.
The defendant also objects to the allowance of the solicitor's
fee which is charged against the fund. We think no error arises
from this action of the court below. By the exertions of the
solicitor the fund was recovered, and it was properly made to bear
some portion of the expense of its administration. The amount was
within the judicial discretion of the court, and in fixing that
amount, the trial court could proceed upon its own knowledge of the
value of the solicitor's services.
Page 168 U. S. 326
Trustees v. Greenough, 105 U.
S. 527;
Fowler v. Equitable Trust Co.,
141 U. S. 411,
141 U. S. 415.
These are substantially all the questions which arise upon the
appeal of the defendant Harrison.
Upon the cross-appeal of the complainant, he seeks to modify the
judgment of the supreme court in regard to the parties to the
distribution, as he claims that the fund should be distributed
one-half to the administrator of the deceased mother of the minor,
and the other half among his twelve half-brothers and sisters
(children of the minor's father), to the exclusion of the minor's
half brother, Grover William Harrison (the son of his mother by her
husband, Harrison), who, by the judgment of the court, is permitted
to share in such distribution. As the trial court made that decree,
and the complainant did not appeal from it, and the supreme court
has simply affirmed that provision, the complainant's appeal from
the latter decree does not, in our opinion, bring up this question
for review. All that the complainant could claim in the supreme
court was the affirmance of the judgment as given in the court
below, because, as he had not appealed from it, he could not be
heard to ask for its modification or reversal. When the supreme
court affirmed that provision of the decree, the complainant's
appeal from that court would not bring the propriety of the
provision for distribution before us.
Upon his cross-appeal, the complainant also asks for a
modification of the decree with regard to the rate of interest
charged against defendant, claiming it ought to be 12 instead of 6
percent. We cannot interfere with the rate charged in the original
decree, because the complainant has not appealed therefrom, and we
do not think we ought to interfere with the rate of 6 percent
charged by the supreme court upon the total amount of the original
decree from the time it was entered. It was, to a certain extent,
discretionary with the latter court, and we think we are not called
upon to alter and increase the rate charged by that court.
Although the complainant herein did not appeal from the original
decree entered by the trial court, yet upon defendant Harrison's
appeal therefrom the supreme court modified the
Page 168 U. S. 327
decree in some particulars, and specially in regard to costs,
charging them upon the fund, instead of against the defendant
Harrison individually, as was the decree below. This was a
modification of the judgment against the interest of and
unfavorable to the complainant herein, as it reduced the amount of
the fund for distribution. This question can be reviewed upon the
complainant's cross-appeal. We are of opinion that there was no
proper ground for the modification of the decree as to costs made
by the trial court.
The defendant Harrison, by the finding of the court, has
willfully obstructed the distribution of the assets of this estate,
and, by his misconduct, has rendered it necessary that the
complainant should obtain possession of them by the institution of
this suit, and the necessity for commencing it arose entirely out
his wrongful conduct. This is the finding as approved by the
supreme court of the territory. The other findings, showing the
false accounts, the wrongful conversion of these moneys, and the
wrongful and persistent refusal to pay them over on demand made by
the administrator, all together make out a gross case against the
defendant, and leave no reasonable foundation for permitting him,
as the supreme court does, to defend this action entirely at the
expense of the fund, and with no personal responsibility for costs.
We see no plausible ground for this privilege.
A clerical error seems to have been made in the distribution by
the supreme court. One twenty-sixth part of the estate is
undisposed of by the judgment. It provides for the payment of
seventeen twenty-sixths to defendant Harrison, and distributes the
remaining nine twenty-sixths, one ninth to each of "eight" named
distributees. One name has been accidentally omitted. This can be
corrected on application by the court below.
The provision making all the costs payable out of the fund
cannot stand, and the decree should charge defendant Harrison with
costs personally, as in the original decree entered by the trial
court, with the exception that the amount of the fee of the special
master is retained at $500. All the costs in this Court must be
paid by the defendant Harrison
Page 168 U. S. 328
personally. The decree of the Supreme Court of New Mexico is
therefore
Reversed on the cross-appeal of Perea, and the cause
remanded, with instructions to enter judgment in conformity with
this opinion, with liberty to change the distribution upon
application if it shall appear proper.
