
    Bird B. Chapman v. Chauncey Loveland.
    A. died having a claim upon the United States pension department for an unpaid pension. C., his administrator, employed D., under special contract, to render services and advance necessary expense money to obtain the same,for three fourths of the amount that should be, obtained, for his compensation. E., the sole surviving child of the intestate pensioner, brought suit against D. for the threé fourths of the pension money so retained : Held,
    1. That the act of Congress of June 19, 1840, making provision for the paying of pensions, etc., constitutes the administrator in such case, a trustee to receive and pay over the money to the surviving child.
    3. That the administrator is entitled to retain and apply so much of the money as is necessary to pay incidental expenses in the discharge of his trust, and should pay over all the residue.
    3. That for the purpose of an action, and recovery by the child, the administrator is a necessary party in the action.
    4 That the child is only entitled to recover such sum as remains after deducting the necessary incidental expenses of a faithful execution of the trust.
    Error to the district court of Lorain county.
    An action was brought by Chauncey Loveland, in the court of common pleas of Lorain county, against Bird B. Chapman. It was stated in the petition that on or about the 27th of April, 1853, a pension was properly allowed by the pension department of the government of the United States, on the application of the personal representative of Esther Loveland, deceased, and that a pension certificate issued, by which said pension was made payable to Theodore Robertson, administrator and personal representative of said Esther, as expressed in said certificate, to be for the benefit of one Esther Graham and the plaintiff, as the supposed surviving children of said Esther Loveland, deceased; that the said allowance so made, and evidenced by the certificate, amounted to $2811. That on or about the 15th day of May, 1853, said Robertson, as such administrator, received said pension money, and thereby became the holder of the money as trustee for the surviving children of s-aid Esther Loveland, deceased ; and the plaintiff sa.ys that at the time of allowing the pension and issuing the certificate, said Esther Graham had in fact deceased, and the plaintiff was and is the only surviving child of the said Esther Loveland, deceased, and as such entitled to have of said Robertson said sum of $2811. That said administrator neglected to pay the money to the plaintiff, but, on the 15th of May, 1853, without his consent, paid of said money the sum of $2108.25 to said Bird B. Chapman, who received it with full knowledge of the rights of the plaintiff. That on the 7th day of August, 1854, the plaintiff demanded the money of defendant, who refused to pay over the same, or any part thereof. That said Robertson is irresponsible, and only gave bail as administrator in the sum of $1600, and that he has no adequate remedy against said administrator, and asks judgment against the defendant for said $2108.25, and interest from said 15th day of May, 1853.
    Chapman’s answer to the petition admits the allowance of the pension upon the application of Robertson as administrator, and that the pension certificate was issued payable to him as such administrator, and expressed to be for the benefit of Esther Graham and the plaintiff, as surviving children; that the money was in fact received by Theodore H. Robertson, and not by Theodore R. Robertson, as charged, and that Esther Graham was in fact deceased, and denies-receiving the money of Theodore H. Robertson, the administrator. But the defendant avers that he was employed by said administra tor, as an attorney and agent, under a special contract to furnish money for defraying all incidental expenses, arid to render all the necessary services in making the application and proof to obtain said pension; and that at the special in stance and request of said administrator, he, the defendant, entered into a contract with him, whereby the defendant un ■dertook to furnish all necessary money for expenses, and to render all necessary services for the agreed price and consideration of three fourths of such sum as should be finally ■obtained; and that in pursuance of the terms of said contract, he did, and performed all that was so thereby made incumbent upon him, and that by means of his said performance of said contract, said $2311.05, was obtained from the pension department ; and that in accordance with the terms of said contract, for his skill, service, and outlays in money, he became entitled to receive the sum of $2128.25, and of which he has received by way of John B. Robertson, the sum of $1405, and no more ; and avers that the sum was no more than the customary fees in such cases, and no more than a reasonable reward for his services, and outlay in money in said business under such circumstances ; and denies the receipt of any other money, or under any other circumstances ; and denies holding any money in trust for, or that he is indebted to the plaintiff.
    The case came on for hearing upon these statements and denials of the respective parties and was tried by a jury.
    The plaintiff and defendant, having each given evidence tending to prove the matters stated in the petition and answer; the defendant’s counsel requested the, court to charge the jury, that the receipt of the money as set forth in the answer, would entitle the defendant to the same, and that no right of action, in that case, would lie in favor of the plaintiff.
    The court refused to so charge the jury, but instructed them that if the administrator had received said money upon the certificate, he was not authorized to pay any part thereof to the defendant, either for incidental expenses, or services in obtaining the same, but that the full amount received from the pension department belonged, and should have been paid over to the plaintiff; and that he was entitled to recover from the defendant, whatever sum he had received from saia fund, although the same was paid to him under his said contract, so made with the administrator.
    To all which said defendant by his counsel excepted. And the jury having returned a verdict in favor of the plaintiff, for the sum of $1826.05, the court rendered a judgment in •favor of the plaintiff against the defendant, for the same, and for costs ; and the defendant excepted.
    To reverse this judgment of the court of common pleas, the defendant below filed a petition in error in the district court, assigning for error the refusal of the court to charge as requested, and the charge as given.
    The district court upon hearing, dismissed the petition in ■error, and affirmed the judgment of the court of common pleas.
    The plaintiff in error has filed his petition in this court, to .reverse that judgment of affirmance.
    
      8. Burlce for plaintiff in error.
    
      Williamson Riddle for defendant in error.
   Sutliee, J.

By the act of Congress, passed June 19,1840 (Mayo & Moulton’s Pension and Bounty Land Laws, p. 211), entitled “ an act making provision for the payment of pensions,” etc., it is provided,

Sec. 1.’ “ That in case any male pensioner shall die leaving children, but no widow, the amount of pension due to sueh pensioner at the time of his death, shall be paid to the ■ executor or administrator on the estate of such pensioner for the sole and exclusive benefit of the children, to be by him •distributed among them in equal shares, and the same shall not be considered as a part of the. assets of said estate, nor liable to be applied to the payment of debts of said estate in •any case whatever.

Sec. 2. “ That in case any pensioner who is a widow shall >die, leaving children, the amount of pension due at the time «of her death shall be paid to the executor or administrator for the benefit of her children, as directed in the foregoing; section.

Sec. 8. “ That in case of the death of any pensioner,, whether male or female, leaving children, the amount of pension may be paid to any one or each of them, as they may prefer, without the intervention of an administrator.”

This act of Congress authorized the administrator of an-intestate pensioner to receive the money due from the government, in trust for the children of the deceased pensioner. Whether his assuming to act as such trustee was at the instance of the surviving children, does not appear from the-record; nor is it at all material. But it does appear from the record that Robertson, the administrator, was empowered to-act, and did act as such trustee to receive the money so obtained from the pension department. It also appears that by the aid of the plaintiff in error, in rendering services and advancing money for incidental expenses, the efforts of the-trustee were successful to obtain the money. But it is said that the money, when obtained, belonged to the defendant in error; that the administrator, upon receiving the money, held it for the benefit of Ohauncey Loveland, as the sole surviving-child of the intestate, and that the amount held by Chapman is in fact to be regarded as part and parcel of this trust fund.. To this it may well be answered that the rights of the claimant are only those of the beneficiary, and are derived through* the trustee. In other words, the claimant has only the right to a faithful performance of the trust on the part of the trustee. If the trustee has faithfully executed his trust toward' the defendant in error, the cestui que trust, then the defendant in error had no claim upon the plaintiff in error, but his-account should be rendered to his employer, the trustee. The claim of the defendant in error has, therefore, to be derived through the trustee. It follows, therefore, that the-amount due to the defendant in error from the trustee must first be ascertained, in order to determine the measure of recovery to which he is entitled against the trust fund in the hand of a third person

What, then, were the rights of this beneficiary against the; administrator, as his trustee? The majority of the court think they were precisely the rights of a beneficiary in all other cases toward his trustee; that is, to have the trust faithfully discharged. It is required of the trustee in this case, as in all others, that he be faithful. He should, therefore, render a fair and true account of the discharge of his duties as such trustee. This account should consist of a correct-statement of the actual expenses of time and money necessarily incident to the discharge of the trust, and the amount of money so received and paid over in such trust capacity; and the balance so shown upon such statement would be the amount justly due to the beneficiary.

The proceeding is to be regarded in the nature of a chancery proceeding. If a third person be charged with holding the trust fund, as in this case, it is proper to make him a party whenever relief is sought against the person so holding the fund. It is, however, necessary that the trustee also be made a party. The judgment of the district court, affirming that of the court of common pleas must, therefore, be reversed; and the judgment of the court of common pleas must also be reversed, and the cause set down in that court for further proceedings.

Judgment accordingly.

Peck and Gholson, JJ., concurred.

Brinkerhoee, O.J., and Scott, J. dissented.  