
    Francis B. Fogg, and Mary, his Wife, vs. John Izard Middleton and Henry Middleton.
    Heard before Chancellor Desaussuke, Charleston, April Term, 1835.
    It is proper to state the relative situation of the family, and the circumstances of the case, winch may be summed up in a short compass. Mrs. Mary Middleton was the" widow oi Mr. Arthur Miudieton, the illustrious sig-.er of tin- Declaration of Independence, amt ns vindicator with his sword, be died, intestate, after the termination jf the rovoimionary w’ar, but prior to the statute of February," 1791, abolishing the rights oi primogeniture, and his real est ue descended to his eldest son, Mr. Henry Mmuleton, one of the "defendants ; w'hilst his personal estate was distributaole, by law, among his widow and children, consisting of his two sons, Mr; lle.n; miooleton, and Mr. J. I, Middleton, and Ins daughters, who respeouvuiy intermarried with Mr. Joseph Mauigay.U, Mr, Henry Izard, Mr. Henry M. Rutledge, Mr. Daniel E. Huger, and Mr.--Blake.
    Mrs. Mary Middleton, in her life time, conveyed, by deed, to her second son, Mr. J. I Middleton, her large veal estate ; and by a will, purporting to be her last will and testament, disposing of her personal estate, bequeathed the greater part thereof between her two sous, and gave considerable pecuniary legacies, (as is alleged,} and which does not seem to be contradicted, to each of her daughters, (except Mrs. Manigauit, who was dead.) Afterwards, she executed another will, and died in 1814, leaving the same in full force, by which she disposod of the bulk of her personal estate to her two sons, subject to certain legacies, and particularly, a legacy to each of her daughters, of £100 sterling, which was greatly be^ low the legacies under the former will,
    ' The persona] estate of Mrs. Middleton V/as appraised at upwards-of sevcnty-o'ne thousand dollars.
    Some discontents naturally arose in the minds of daughters,, so slightly provided by a wealthy parent, who bestowed so large a •fortune on her sons; for notwithstanding the legal right of the parent, to dispose of her estate, according to her judgment, her preference, or even her caprices, the moral sense of the community, and the feelings of families, revolt at any very great disproportion made among children, where no misconduct exists, or is alleged to exist. These discontents reached the oars ot Mr. J. I. Middleton^ with the exaggerated report, that the use or the abuse of his personal influence over an aged mother, had produced the effect of diminishing her bounty to her daughters, by her last will and testament, to his benefit. His delicacy revolted at the supposed imputations, and he resolved to vindicate himself from them, by voluntarily executing bonds, to each of his sisters, to the amount they would have been entitled to- under the former will of their mother ;• and thus relieve his name and character from the suspicion of having exercised an undue influence over Ins mother, for his own ba.-nefit, and to the prejudice of his sisters. He accordingly executed bonds to them, or their husbands, for the sums to which they would have been entitled under the older will of their mother, and trans. mitted them to their respective husbands. These, it seems, were returned by all of them, except Mr. Henry Izard, who, it seems, consented to receive it, but in a modified form,' as appears by the two letters of Mr. J. I. Middleton, of the 4th and 17th May, 1815, to Mr. Henry Izard, in which he speaks fully on this subject; and explains his views and intentions, his motives and his acts, in rola lion to all his sisters. Mr. J. I. Middleton, in pursu-anee of these intentions, executed bonds, in trust, to his brother,. Mr. Henry Middleton, with condition for the payment of certain sums for the eldest daughter of each of his sisters, and placed them in the possession of his brother, Mr. Henry Middleton. He then went to Europe, about 1817, and has remained there ever since, leaving his estate, including the personal estate, the slaves derived from his mother’s will, in the hands of his brother, Henry, as bis attorney and agent; and to apply the income o.f the estate to the payment of the debts of her estate, and the legacies under her will. The debts have been paid, and the bond to Mr. Izard’s family has been paid, but no payment has been made on the bond for Miss Mary Rutledge, now the wife of Mr. Fogg, the complainant. After many years, applications were made, by letters, to Mr. Henry Middleton, as the agent and attorney of Mr. J. I. Middleton, for payment, which applications being unattended to, the bill was filed in this court, which makes this case.
    The defence set up against the claim, is stated fully in the answers. In substance, it is, that the bond, though signed and sealed, was not delivered, but kept some time 'by the obligor, and then deposited for safe keeping, with his own agent and attorney. That it was voluntary, and without consideration, and cannot be enforced in a court of equity. And that it was conditional, as to the time of payment, which was to be made after the debts and legacies w'ere paid, without interest, till a year after those payments.
    
      The first question, then, is, whether the bond, in question, is obligatory on J. I. Middleton, so that the same can be enforced in this Court ?
    It is proved by Mr. Bee, to have-been duly executed, and he was a subscribing witness. It was a voluntary bond, in the ordinary sense, as there was no pecuniary consideration. But it was given upon full deliberation, not lightly, and upon a consideration of the highest import to the feelings of the obligor. He saw, and he felt, that the extraordinary preference given to him. by his mother, by the conveyance of a great real estate, and bequest of a large personal estate, to the disinherison of his sisters, highly estimable in themselves, and who had never given offeuee to their mother, (for that is not pretended,) had produced a painful effect on their minds. They were disappointed of reasonable expeeiations, and humiliated by parental neglect, amounting to a marked preference of another child, and he felt that something was due to their wounded feelings, and to quiet his own miud, and to secure himself from suspicions, if not imputations of an undue infiueuce exercised over tlie mind of lus aged mother. He, himself, therefore, proposes to give them bonds, equivalent to their expectations, under a former will. Ke, himself, in his letter to Mr. Izard, puts it on that ground. He valued family concord, and propitiates it, by doing voluntarily, an act which he felt to be a duty to himself, and did not consider it a bounty. He disclaims the idea, over and over again, that it is to be considered, by his nieces, as conferring a pecuniary obligation on them. This, then, is a good consideration, on which the bond can be supported.
    It was. however, urged, that it was not delivered to Mr. Henry Middleton, as trustee, for the persons intended to be benefitted, but as his agent, for safe keeping. And that Mr. Henry Middleton did not accept the trust; and, therefore, the act was not perfected. Mr.- J-,I. Middleton, himself, under his own hand, states how he considered the transaction at the time, aud how his brother consi-sidered it. He says, in his letter, “ In order so effect this purpose, my brother has consented to become a ‘trustee, for bonds, to the amount of the supposed deficit, which I have drawn in favor of my eldest niece,” &c. “ I had it drawn in this manner, (stating the manner,) in order lo avoid the possibility of its lapsing by any accident to Mary, for whom it is intended.” Again, a circumstance stated, induces me to put them all on the same footing, and render the deed irrevocable, (as my determination always has been,) through my brother.” in the letter of 17th May, 1815, he says, “ A bond drawn in the manner you mention, shall he substituted for that now in the 'possession of my brother.” Surely, these various expressions denote a finished act irrevocable ; and that his brother was the trustee, and had consented to act. Can it be permitted to the defendant, to weaken the force, or change the character of this transaction, arid these clear and positive declarations, by recollections at the end of twenty years, seated by the defendant, himself, with proper caution, as uncertain ? Assuredly not. The court must and will look to the acts and declarations of the party at the time of its origin, and not to (aint, and doubtful, and ancient, recollections ; and so with regard to Mr. Henry Middle-tou, the defendant. In his answer, after twe..ty yours, ,tod after being engaged in great public affairs abroad, which drew his attention from minor affairs at home, it is stated, so as to leave it doubtful or questionable, whether the bonds were placed in hts bu-ds as trustee or as agent of bis brother, and whetherhe accepted tli ■ rust. His brother, Mr. J. 1. Middleton, unqualifiedly, says, lie had co .ne.it-ed to serve as trustee. Could lie be mistaken, when speaking t he very time of the transaction? Or is it not more hk--ly, that a recollection, at such a distance of time, should be incorrect? í lio evidence, too, of Mrs. Rutledge, a lady of the. most respectable character, drawn from her reluctantly and painfully, taken iu connection with Mr. J. i Middleton’s letter, is conclusive. She tesufi -s, “that in the month of October. 1819, she passed a few days with her brother, Mr. Henry Middleton, at his residence, near Washing, ton. During her stay, and the morni. g preceding the day of her ce. parture, he made her a communication respecting a bond executed by her brother, J. 1. Middleton. He sluttd that as they, the wit. ness and himself, might be separate m.my years, he requested her to recollect, that among other bonds, left with him by bis brother, J. I. Middleton, there was one executed to him, by his said brother, for the benefit of her, witness’, daughter, Mary, now Mrs. Fogg, for one thousand pounds sterling,and that if any thing should happen, 1 must lemember. that his estate would be liable for it.” She understood that he was perfectly acquainted with the nature of the bond, and regarded his communication -is intended to inform her, that he held the bond, in trust, for her daughter, Mary, although she does not remember that the word trustee was used. The amount of the bond was mentioned, but she does not remem-, ber the date.
    The witness was under the impression that the other bonds alluded to, were of asimilar nature to the one he, Mr. H. Middleton, desired her to bear in mind. She supposes this impression arose from her having heard that her brother, Mr. J. I. Middleton, bad given bonds in favor of the children of her deceased sister, Mrs. Henry Izard. The counsel for the defendant supposes that Mrs. Rutledge must be mistaken in her evidence. But, surely, more reliance is to be placed on the plain, positive, and affirmative evidence of a witness, entitled to the highest credit, who gives par-ticularp of time and place, and the occasion of the communication, on a subject of which her attention was particularly drawn, a few years after the execution of the bond than on the negative recollections of a defendant, even oí the same high character, after a lapse of twenty years.
    In my judgment, the bond was duly executed, was irrevocable, was placed in the hands of Mr. Henry Middleton, as trustee, and he was bound to take care of the interests of the cestui que use. This is the equity and justice of the case; and is, 1 think, amply supported by the authorities cited by the counsel in the agreement.
    The only question which remains, is, when it shall begin to near interest. The condition of the bond, is, that the sum of one thousand pounds sterling, should be paid in three equal annual instal-ments, to commence from the day when the debt and legacies charged on the estate of the late Mrs M iry Middleton, mother of the said J. i Middleton, shall have been paid and released, with annual interest on the said sum, which imerest snail commence from the end of one year, after payment of debts and legacies, as. .aforesaid. The complainants allege, that the income of the estate was sufficient to have paid the debts and legacies, some time in the year lt-tóO, and that the interest should commence, one ve.ir after. The defendants insist, that the income of Mrs. Mary Middleton’s, estate, broke in upon as it was, by a defaulting agent, was not sufk fi'cieut to have paid the debts and legacies of her estate, before-about the year 1830, or 1831 ; consequently uo interest is charge, able -earlier. This is a point which can only be settled by an account which must be gone into, unless the parties shall agree and fix upon an intermediate terra. It appears that the personal estate bequeathed by Mrs. Mary Middleton, to her son, Mr. J. I. Middle, ton, remains in the hands of Mr. Henry Middleton.
    It is, therefore, ordered and decreed, that the sum of one thou, sand pounds sterling, the condition of the bond in question, be paid, out of the said estate, together with interest,'and that it be referred to the commissioner, to examine the accou its of the income of the said estate, from the year 1815, and to ascertain the debts and legacies due by the said estate, and to report when the income was sufficient to have paid the said debts and legacies, and to calculate interest on the said bond, from one year after the period when said debts and legacies could have been paid, which shall be paid out of the said estate.
    On further consideration of this case, it appears to me, proper to add, that afier the distinct and positive declaration, in writing, by J. I. Middleton, that his brother had consented to accept the trust in question, and after the avowal of the trust by Mr. Henry Middleton, testified by Mrs. S. S. Rutledge, it was notin his power to disclaim the trust. He had assumed the trust, and acted under it, by paying the money on one of the bonds to the family of Mr. Izard ; and that without any other instructions from Mr. J. I 'Middleton, but on his general authority. Again, Mr. J. 1. Middleton says, in his answer, that he did not advise his hrother to take the ground of defence assumed in the answer, to wit — That the bond was voluntary and revocable, was never formally delivered, and that Mr. Henry Middleton never assumed the trust This appears to me a plain disavowal of the defence ; notwithstanding the ultimate adhesion to the. defenco. I cannot, upon the fullest consi. .deration, see any reason to doubt the equity and the legality of decreeing for the complainants.
    HENRY W. DESAUSSURE.
    Defendants appeal, and hope the decree may be reversed, for the following, among other reasons :
    1. That complainants seek payment of a voluntary bond, never ¡delivered to them, but signed and sealed, and made payable to Henry Middleton, who refuses the trust; so that complainants cannot sue at law. But if they cannot sue at law, they cannot be relieved in .equity, for equity never interferes in favor of a volunteer.
    2. That the bond being voluntary, and the complainants not parties to it, J. I. Middleton had a righr, if he saw fit, to recall the money. That he has exercised this right, and equity will not con. trol the legal right of the obligor, or obligee, or give fire complain? ants a better security.
    3. That in point of fact, there was no delivery of the bond ; and no acceptance of the trust, by the supposed trustee.
    4. That in favor of a volunteer, relief cannot be extended in equity, beyond the letter of the deed. Whereas, the decree not only carries the relief beyond the letter of the deed ; hut, in opposition to equity, makes the defendant liable to the complainants, for the default of a third person ; and decrees interest- from the time when the debts and legacies might have been paid — if moneys lost, without the wilful default of the defendants, had been duly applied.
   Chancellor J. Johnston

delivered the opinion of the.court.

Under the decided cases, the delivery of the bond would have been established upon even less evidence than was furnished on the trial. As it is, the proof fully sustains the chancellor’s conclusion pn the fact.

The law of the case seems to admit of little doubt.

Cases have been quoted to shew that agents will not aid a mere volunteer, where no legal right has passed, or where the action of this court is necessary to constitute the relation of trustee, and cestui qué trust.

But the delivery and acceptance of the bond, ipso facto, constituted Mr. Henry Middleton, trustee. The bond contained his commission, and set forth his duties.

it also vested in him, the debt of which it was the evidence f and if that debt should be detained, he had a legal remedy to reco-' ver it.

Wherever a trustee has accepted a trust, he is bound to a dili.' gent Uischarge of his duties. If he holds choses in action, with a clear remedy on them, it is unfaithful in him not to endeavor to enforce them. If he holds a Bond, even although that bond is a free gift, he has no right to remit it.

It never was ihe jaw that a trustee was not as amenable to a 'volunteer cestui que trust, as to one who is not a volunteer. If that' were the law, no executor would be accountable to collateral legatees.

So that without going further tiran Mr. Henry Middleton, the' .plaintiff has aright to come here to compel him to perform his trust.-

But if he is liable, it results that he may be compelled, also, to' surrender to his cestui que trusts, all the legal remedies he possesses.And this puts the plaintiff in possession of the bond, to all intents,* as if it. had been drawn to him as obligor, or assigned to him.

If it had been drawn to the plaintiff, by Mr. John Izard Middleton, or assigned to him by Mr. Henry Middleton, will it be pretended that the plaintiff could not recover from the obligor, even if it was given on no consideration ? If it had been given on a consideration, which foiled, that would be a good defence. But the original want of consideration would be none.

• But if a consideration were necessary to support the transaction, and enable t'he plaintiff to sue here, one existed in this case, not valuable, indeed, but meritorious. The chancellor has stated it truly and forcibly.

The object was to heal family discord, by curing suspicions.

In Wiseman vs. Roper, 1 Ch. Rep. 84, articles were enforced in favor of a nephew against an uncle, whose principal object, in entering into them, was to reconcile the nephew’s father to him.

In Stapleton vs. Stapleton, 1 Atk. 1, Lord Hardwicke held a volunteer entitled to the execution of an agreement intended to establish the peace of a family.

If the court, in this case, travels beyond the case of the trustee and cestui que trusts, and takes cognizance of the liabilities of the obligor, it is at the instance of the defendants, who insisted on his being "made a party. Being here, at his own instance, the court will, to prevent circuity of action, decree against him what he would have been liable to pay the defaulting trustee, or what the plaintiffs could recover, if the bond had b9?n assigned to them.

Petigru, for motion.

Gkuikh, contra.

Filed 6th March, 1837.

The payment of the bond is, by its terms, made to depend upoti the extinguishment of the debts and legacies charged on Mrs. Mid. dletau’s estate. The instrument should receive a reasonable construction ; neither too strict nor too loose on either side. On the one hand, it could not be the intent of the obligor, when ho gave the bond, to give an unavailable obligation ; which this would be, if he might evade payment, by capriciously delaying to discharge the precedent obligations. On the other hand, he should not be bound to greater diligence in paying the prior obligations, than would be exacted of one who had accepted a trust to pay them out of the assets of the estate; and if, by reasonable diligence, they could not be paid as early as the plaintiff could have wished ; or, if without fault in Mr. Middleton, the assets were wasted by an agent, (which would excuso a trustee,) those circumstances should be taken into consideration in fixing the time when the debts and legacies should have been extinguished. Oí course, these matters will be attended to in the reference which the chancellor lias ordered.

The motion is dismissed.

J. JOHNSTON,

We concur,

WILLIAM HARPER,

DAVID JOHNSON,

Chancellor Pesaussukb absent, from indisposition.  