Bank of the United States v. Beverly, 42 U.S. 134 (1843)
U.S. Supreme CourtBank of the United States v. Beverly, 42 U.S. 1 How. 134 134 (1843)
Bank of the United States v. Beverly
42 U.S. (1 How.) 134
The case in 35 U. S. 10 Pet. 562, reviewed and confirmed.
A fact tried and decided by a court of competent jurisdiction cannot be contested again between the same parties, and there is no difference in this respect between a verdict and judgment at common law and a decree of a court of equity.
But an answer in chancery setting up, as a defense, the dismission of a former bill filed by the same complainants, is not sufficient unless the record be exhibited.
A disposition by a testator of his personal property to purposes other than the payment of his debts, with the assent of creditors, is in itself a charge on the real estate, subjecting it to the payment of the debts of the estate, although no such charge is created by the words of the will.
Lapse of time is no defense where there is an unexecuted trust to pay debts, which this court, in 1836, decided to be unpaid in point of fact.
This case grew out of that of Peter v. Beverly, which came before this Court in 1836, on an appeal from the Circuit Court of the District of Columbia, in decreeing an injunction on the proceedings of the then complainants, to sell a part of the real estate of David Peter, deceased. A full report of that case will be found in 35 U. S. 10 Pet. 532, et seq., wherein all the facts and circumstances attending it are fully set forth in the opinion of the Court, and do not require repetition now. The result of that opinion was a reversal of the decree below, a dissolution of the injunction, an order that the bill of the complainants be dismissed, and that the cause be remanded to the circuit court with directions to carry the decree of this Court into effect. This was done, and the decree consummated by a sale of the property in controversy, which consisted of those parts of the real estate of David Peter which he had by his will charged with the payment of his debts; but they being insufficient for the purpose, the present bill was filed in order to subject the residue of the estate, not so charged directly by the will, to the payment of the residue of the debts of the estate.
In March, 1836, the heirs or devisees of David Peter executed a deed to John Marbury authorizing him to sell certain property, which he accordingly did, the amount of sales being $38,722.32.
At a subsequent period of 1836, the Bank of the United States, in behalf of the said bank and of the United States and of such of the creditors of the estate of David Peter as should come into court and contribute to the expenses of the suit, filed a bill against George Peter, surviving executor, against the heirs or devisees of David Peter and against John Marbury, trustee as aforesaid, stating that the personal estate of the said testator had been applied to the use and benefit of the heirs by the executors, in the fulfillment of the trust created by the will, and claiming that the real estate of the said testator, or the proceeds thereof, or as much as might be necessary, should be applied to pay whatever balance might remain due to the creditors, after selling and applying to that purpose the proceeds of the city lots and the land upon which Dulin lived. It prayed also an injunction against Marbury, and for other and general relief.
In April, 1836, the following agreement was made between the counsel of the respective parties, and filed in the cause.
"Agreement of Counsel"
"It is agreed by the parties in this cause, by their counsel, that the Bank of the United States and George Peter, who claim to be creditors of the estate of the late David Peter, for a balance of debt which may remain to them after the application of the trust estate provided in the will of the late David Peter for the payment of his debts, shall, if such balance be established against the defendants, the heirs and devisees of David Peter, as to so much of David Peter's real estate as is conveyed to John Marbury, by deed filed as an exhibit with complainant's bill, look to the proceeds of sales of said real estate so conveyed to the said John Marbury, in lieu and stead of the said real estate itself."
"It is further agreed, that as soon as the purchase money of said real estate shall become payable and be collected by said John Marbury, he shall invest the same in his own name, as trustee, in Pennsylvania state stock, bearing interest at the rate of 5 percent, first deducting therefrom the necessary expenses, taxes due on the said property, to the day of sale, and the commissioners provided for in the said deed; the whole of the proceeds of the said sales, after such deductions made, to be subject to the order and decree of this Court in this cause for the disposal thereof, whether the said order or decree be for the payment of debts due from the said estate of David Peter to the Bank of the United States, or to George Peter, or other person, or from the said heirs and devisees, or either of them, to the said Bank of the United States, or George Peter, or either of them, on account of any portion of the personal estate of said David Peter, used or retained by them severally; provided also that it is the true intent and meaning of this agreement, that the part, portion, or interest of each of said heirs and devisees, should be responsible only for so much of the claims and debts of said heirs and devisees, to said Bank of the United States, or George Peter, as he or she shall be personally responsible for, and that no one shall be held or deemed responsible for any other than him or herself."
"It is further agreed, that the Bank of the United States, or George Peter, or either of them, by themselves or their agent,
may stop or postpone the sale of any portion, or the whole, of the property advertised for the 15th inst., or any future attempted sale of property so conveyed to said John Marbury, if they, or either of them, should be dissatisfied with the prices bid, or offered, for said property, or any portion thereof; provided, however, that all the said property shall be sold during the present year, unless the said bank and George Peter consent to further delay."
"It is further agreed, that the three story brick house and lots appurtenant in Washington City, set forth in said deed to John Marbury, as devised in trust for William H. Peter, shall be sold jointly by the said John Marbury and the said George Peter, Sr., executor of David Peter, and upon the terms mentioned in the deed to said John Marbury; and that the proceeds of the sale of the said house and lots appurtenant, after deducting expenses and taxes, shall, when the same becomes due and is collected, be invested by the said John Marbury and George Peter, in their joint names as trustees, in five percent stock of the State of Pennsylvania, to abide the order of this Court for the disposal of the same. The said John Marbury to charge no commission on the proceeds of said sale, if the court shall be of opinion that the said house and lots appurtenant be part of the real estate of David Peter, and the said George Peter to have no commission on the proceeds thereof, if the court be of opinion that the same is the property of the estate of William H. Peter, deceased."
"It is understood and agreed, that nothing herein contained is to be taken to amount to an admission by the defendants, the said heirs and devisees, or either of them, that any debt is due from them, or either of them, to the said complainants or the said George Peter, or to prevent them or either of them from having the benefit of the statute of limitation, by plea or answer, or any other defense, legal or equitable, against the enforcement of the claims of the complainants, or George Peter, except that the said defendants, the said heirs and devisees, do hereby waive any exception to the jurisdiction of the court, as to the personal estate in this agreement mentioned."
"F. S. KEY, for United States Bank"
"JAS. DUNLOP, Solicitor and Trustee for Geo. Peter"
"JOHN MARBURY, Sol'r for heirs, and devisees, and himself"
"April 12, 1836 "
Afterwards all the defendants answered. George Peter, the executor, claimed to be a creditor of the estate; Marbury admitted the execution of the deed to him and the sales under it, and the devisees, Beverly and others, pleaded the lapse of time and the statute of limitations as a full and complete bar against the claim of the complainants. They also denied all knowledge of an arrangement with the Bank of Columbia; required proof of it; denied the authority of the executors to cast any further burden upon the real estate, than such as would result from a deficiency in the personal estate; denied that the executors applied to the bank for indulgence; averred that the negligence of the executors alone prevented the recovery of the purchase money of the farm from Magruder; averred that the children of David Peter were minors at the time of his death, and incapable for consenting to any arrangement whatever with the banks; that Beverly had no knowledge of, or interest in, the property until 1819, when his marriage took place; that they were never able to acquire any information, and never did, of the complicated affairs of the estate; praying that the decree of the court, dismissing a similar bill in 1827, may be as effectual as if formally pleaded; averring that any agreement with the banks could affect nothing more than the trust part of the real estate; they deny the authority of the court to decree a sale of property situated in Maryland; aver that the executors received large sums of money for which they have rendered no account; that no part of the personal estate came into the possession of Beverly since his marriage; that if any part of it came into the possession of his wife before her marriage, it was very inconsiderable indeed; and that the personal estate continued principally in the possession of George Peter, the executor, by whom it was used, wasted, and otherwise disposed of.
On motion of the complainants, by their solicitor, the circuit court ordered
"That the decree of the supreme court, and the bill, answers, exhibits, depositions, and proofs in the case of Beverly v. Peter in the said record, and on file in the said cause, be read and made use of in the hearing of this cause."
In January, 1840, the papers in the cause, with the evidence already taken and on file, were referred to the auditor to state an account between the parties upon the principles of his former report, and in November, 1840, he reported as follows:
"The Bank of the United States and Peter"
"v. In chancery"
"The Estate of David Peter, deceased"
"The undersigned auditor of the chancery court for Washington County, District of Columbia, has had the papers filed in this cause under examination, and now submits the following report: "
"That the claim of the Bank of the United States against the estate of David Peter, with interest to 12 November, 1840, and costs, is $46,119.75; and that the claim of George Peter, per statement herewith, is $26,607.78. That the net proceeds of the sales of property sold by George Peter, as executor, is $17,513.66, to which may be added the estimated value of two thousand acres of land in Montgomery County, Maryland, called Dulin's (which originally sold for a little upwards of $20,000), $7,500; of vacant lots in the City of Washington, $1,500, and $2,873.15 being the amount awarded to the proprietor of Dulin's farm by the Chesapeake and Ohio Canal Company, for damages done by running said canal through that farm, which sum has never been paid by the executor of David Peter. These several items, if the property brings this estimated value, will make the sum of $29,386.81 for trust estate."
"That the sales made by John Marbury, under an agreement made by the parties to this cause, as per report of sales, amount to $41,731.86, but owing to the noncompliance with the terms of sale, of some of the purchasers, the corrected sales as specified in Mr. Marbury's account No. 2, the amount is reduced to $38,722.32; the whole amount of the payments received by Mr. Marbury up to 20 April, 1838, is $21,711.16, from which deduct, for expenses, taxes, surveying, auctioneer's bills, and the trustee's commission $1,804.76, leaving in the hands of the trustee, $19,906.40, which amount, according to his report, has been vested in the stock of the State of Pennsylvania, bearing interest at 5 percent per annum. The corrected sales, as above, amount to $38,722.32, to which may be added as follows: Wm. Ramsay's purchase of lots, $,2084, and Wm. Stewart's, $501, which still remain for the trustee to dispose of, and if they bring the same at which they were struck off at to Ramsay and Stewart, will make, when added to the $38,722.32, the
sum of $41,307 32 as gross sales; in addition to this sum, there remains twenty-four acres of land, near the City of Washington, bought at the sale by Mr. Upton, who never complied with the terms of sale, and never has paid for, which it is believed will sell for $1,000; this will make the trustee's sales amount to $42,307.32, and taking the expenses, commissions &c., as before mentioned, it will leave in the hands of the trustee the sum of $40,502.56. That it thus appears, that the sales of George Peter, acting under the will of David Peter, amount, if the sales shall be equal to the estimate here given, will be $29,386.81, and those by Mr. Marbury, $40,502.56. To these sums are to be added the amount of interest received on the notes given in payment, and the interest on the Pennsylvania stock."
"The auditor has read and considered the pleas of limitation put forth by the answers of the heirs of David Peter, and by John Marbury, Esquire, as their solicitor in this cause, and is of opinion that it is not available, under the circumstance of this case, as it respects either of the creditors."
"Submitted by JOSEPH FORREST, Auditor"
"10 November, 1840"
"In the audit of 10 December, 1833, the executors are charged with the following, being for property sold in the City of Washington to sundry persons, viz.: Shaw and Elliot, lots $1,000; J. Kuhn, $796.86, and Francis Dodge, $175, making in the whole $1,971.86. It is contended by George Peter, the surviving executor, that he never received this amount, or any part thereof, but that the same was received by the heirs; as Major Peter gave deeds to the purchasers, the auditor is of opinion, that it was rightfully charged in said audit. This amount the executor can bring into his settlement with the heirs, but not into a settlement with the creditors of the estate."
"JOSEPH FORREST, Auditor"
"10 December, 1840"
Whereupon the complainants, by their solicitor aforesaid, filed the following exceptions to the auditor's report:
"Because the auditor has charged George Peter, surviving executor, with the purchase money of the lots sold to Kuhn and
Birth, when it was proved, that the same was not received by him, but by James B. Beverly, or was applied by him to the payment of debts of the deceased, for which the executor is not credited."
"F. S. KEY, for complainant"
Whereupon the said defendants, by their solicitor aforesaid, filed the following exceptions to the auditor's said report, to-wit:
"Defendants' Bill of Exceptions to Auditor's Report"
"Exceptions on the part of the heirs at law and devisees of David Peter, defendants in the above cause, to the report of Joseph Forrest, Esq., auditor, made in this cause, and filed the day of November, in the year 1840. The said defendants except to the said report,"
"1. Because the auditor has allowed a claim or debt of $46,119.25, in favor of the complainants, the Bank of the United States, against the estate of the said David Peter and the defendants, his heirs and devisees, without legal, competent, and proper evidence of the existence of such debt, or of any debt whatsoever, due from the said David Peter, in his lifetime, and with the payment of which these defendants ought to be charged in this suit."
"2. Because, in stating the said pretended debt or account, between the complainants and the said defendants, the heirs and devisees of the said David Peter, the auditor has allowed compound interest, and thus, unjustly, illegally, and oppressively increased he said pretended debt."
"3. Because, if any such debt was due from the said David Peter, in his lifetime, and at the time of his death, which happened in the year 1812, the recovery of the same against these defendants, as the heirs and devisees of the said David Peter, in consideration of any real estate descended from, or devised by the said David, to these defendants, was barred by lapse of time and the provisions of the act of limitations, and although these defendants, in their answer to the bill of complaint, and at the hearing before the auditor, insisted on the lapse of time and the provisions of the act of limitations, in bar of the said debt or demand of the complainants, the auditor rejected their said defense, and allowed the said debt or demand."
"4. Because George Peter, the surviving executor of David Peter, and one of the defendants to the said bill of complaint,
having elected to come in and contribute, with the complainants, to the expenses of this suit, filed an account as a creditor of the estate of the said David Peter, amounting to the sum of $26,607.78, which said sum of $26,607.78, the auditor has allowed as a just and proper charge against the estate of the said David Peter, and for the payment of which, the real estate, devised by the said David to these defendants, ought to be sold. Whereas, these defendants say, that there is no evidence in the cause to prove the same, or any part thereof, to have existed as a debt against the said David Peter in his lifetime, or to authorize a decree for the sale of the real estate devised to these defendants, by the said David, for the payment of the same."
"5. Because each and every one of the items of charge contained in the account of the said George Peter, so allowed by the auditor, was of more than three years' standing before the filing of the said account, by the said George Peter, with the auditor, and before the filing of the bill of complaint in this cause by the Bank of the United States, against these defendants and the said George Peter, and was, at the time of the filing of the said bill of complaint, barred by lapse of time and the provisions of the act of limitations, and these defendants, at the hearing before the auditor, and before the making of his said report, as appears by the said report, insisted on the lapse of time, and the provisions of the act of limitations, as a bar to the claim of the said George Peter; notwithstanding which, the auditor allowed the same."
"6. Because the report of the auditor and the account accompanying the same, are not in pursuance of the order of reference to the auditor, but relate to claims and accounts not embraced in such reference."
"7. Because the said report, accounts and statements, accompanying the same, are unsupported by legal and competent evidence in the cause, and therefore ought to be set aside."
"8. Because the sum allowed to George Peter, as surviving executor of David Peter, by the auditor, is for a general balance on the settlement of the executor's account, as is alleged, for that amount overpaid the proceeds of the estate which came to the hands of the executors, to be administered, and the defendants, as heirs and devisees of the real estate of the said David Peter,
are not chargeable by the executors, or the survivor of them, with the payment of such balance."
"Solicitor for the heirs and devisees of David Peter"
On 21 January, 1841, the cause came on for hearing on the exceptions to the auditor's report, and the bill, answers and exhibits, depositions and proofs and general replication; when the court decreed that the exceptions to the auditor's report, made by complainants, be overruled, and the exceptions of defendants to the auditor's report be confirmed; and that the bill of the complainants be dismissed with costs.
From that decree the complainants appealed to this Court.