
    Markham v. Guerrant & Watkins.
    February, 1833.
    (Absent Bkookb, J.)
    ¿Conveyance an Trust I or Maintenance of Grantor ami Family — Expenditure oí Income in Less Than a Year - Case at Bar. — J. M. by deed conveys land and slaves and other personalty to W. F. in trust, ior tile support and maintenance of J. M. and L. his wife, and their children and family during-the joint lives of J. M. and his wile, and the life of the longest liver of them, remainder to their children, with full power to the trustee to manage the estate, and to sell any part of the trust subject to pay the debts of .1. M. then due; J. M. in the space ot seven months contracts a debt to merchants for goods furnished to an amount equal to whole yearly profits of trust estafe: lineo.
    1. Same— Same —Prospective Profits— Right of Equity to Charge. — That such debt contracted by J. M. cannot be properly charged by a court of chancery on the prospective profits of the estate, so as to bereave J. M.’s wife and children of support; and
    2. Same ~ Same — Same—Right of Trustee to Pledge. —That the trustee could not pledge the prospective profits of the trust estate necessary for the current support of the cestuis que trust, to such a debt, if contracted even by the trustee himself, for their past support; much more the debts contracted by one of the cestuis one trust without the trustee's consent or knowledge.
    3. Equity Practice — Infant Cestuis Que Trust — Sale of Property tor Support.-But, it seems, a court of chancery may authorize the sale of the personal property of infant cestuis que trust, in cases where such sale is absolutely necessary for their support.
    By deed, dated the 25th June 1810, and duly recorded in the county court of Gooch-land in July following, John Markham conveyed to William Fleming, George Markham and Thomas Harris, a parcel of land in Goochland, and thirteen slaves and some other personal property, in trust —t‘that they should make the utmost possible profits from the said estate, by cultivating the land or otherwise at *their discretion, for the purpose of paying all the said John Markham’s just debts, and for the support and maintenance of the said John Markham and Lucy his wife, and their children and family, during their joint lives and the life of the said Lucy; and at her death, in case the said John should then be dead, that then the whole of the said estate both real and personal be equally divided among all the children of the said John and Lucy then living, and the legal representatives of such of them as may then be dead: with full powers in the meantime to the said trustees, or any or either of them, to employ or hire an overseer or overseers, at their discretion, to look after and direct the said slaves for the better management and improvement of the said estate; and also to keep in repair the houses already on the premises, and to build and erect thereon such other house or houses as to them or either of them shall seem necessary for the better securing the crops or improving the said estate; and further for the said trustees or either of them to sell any part or parts of the said estate (except the land during the life of the said Lucy) as may be judged necessary and expedient for the purpose of paying the debts of the said John Markham now due and owing to any person or persons whatever.”
    Guerrant & Watkins exhibited their bill, in the superiour court of chancery of Richmond against William Fleming and George Markham the surviving trustees, Lucy the widow of John Markham then dead, and their children, eleven in number, all but two of whom were infants — setting forth the deed of trust; alleging, that between the first of April and the last of October 1818, they, relying on the credit of the trust estate, had furnished sundry necessary supplies of merchandize, to John Markham (in his lifetime) and his family, for their domestic use, to' the amount of 344 dollars; that, on application to Fleming, the trustee, he had assumed the payment of the debt out of the trust estate, by a letter to the plaintiffs, which they exhibited with their bill; that John Markham had : : : 1 lately died, leaving no property *whatever, but the trust estate; and praying, that the trustee should render an account of the trust estate, and that the plaintiffs’ demand might be provided for and paid, either out of the profits, or by a sale of a part of the trust subject for the purpose. ;
    Fleming answered, that he had been, from the first, the only acting trustee, the trustee Harris having died shortly after the execution of the deed, and G. Markham having declined the trust; that he was largely in advance to the trust; that many of the slaves had been sold to pay the debts of John Markham due at the date of the deed of trust: that there remained of the trust subject, only the land and three labouring slaves, and many young ones that required support; that the supplies alleged by the plaintiffs to have been furnished By them, were made without his knowledge or consent, and having regard to the trust property, were enormous in amount; that as to his alleged assumpsit to pay the p'aintiffs’ claim out of the trust subject, the fair construction of his letter exhibited by them to prove the assumpsit, was, that he only consented that the plaintiffs’ account, so far as it should appear just, might be paid out of the profits of the estate, as they might arise; that he had no competent authority, as trustee, to apply the principal to the payment of this debt: and he stated some specific objections to the plaintiffs’ account.
    The trustee George Markham answered, that he had never undertaken the trust, and had on the contrarjr declined it.
    Lucy Markham, the widow, in her answer, admitted that the plaintiffs' furnished her husband with goods to a large amount. And Bernard Markham, one of the children, said in his answer, that he was not. in Virginia during the time of the dealings between the plaintiffs and his father; he believed, part of the articles charged in the plaintiffs’ account was procured for the use of his father’s family, but to what amount he was ignorant; and he referred to, and relied upon, the answer of the trustee Fleming.
    ^Fleming died pending the suit, and it was revived against his executor, and the cause regularly matured for hearing against the other defendants.
    The letter of the trustee Fleming, exhibited with the bill, was addressed to the plaintiff Guerrant; it was dated the 1st November 1818, and was in these words: ‘ ‘Dear sir, I have received your letter of yesterday’s date; and in answer thereto, say, that I had but a slight view, for a few minutes only, of the account you sent over by Mr. Markham, who took it away, and I have never seen it since; however, sir, if you will agree to wait till the next crop, I will assume the payment of it out of the trust estate; and I am free to allow, that every thing that shall be made on that estate for market, whilst I remain a trustee, shall be applied to furnish necessaries for the family, though not at the will or caprice of John Markham himself, who was here today, and is generally much deranged in his mind. I became a trustee for the estate in July 1810, and have never disposed of a dollar’s worth of the profits of the estate, except 120 bushels of wheat, delivered at Dover mills in November 1810, to Isaac Webster, to pay him in part for 300 dollars he advanced to redeem one of Mr. Markham’s negroes then under execution: the balance of the 300 dollars I paid to Mr. Webster out of my own pocket, and since have advanced for the estate near 1000 dollars more, and 314 dollars of it, since last December; and yet he says he neither owes me or any other person a dollar. I will endeavour to get the account from John Markham, and if I fail, shall apply to you for a copy of it at a future day. (Signed) W. Fleming.”
    According to the report of a commissioner made in pursuance of an interlocutory order in the cause, the profits of the trust estate, were 300 dollars per annum.
    Whereupon, the court, declaring that the plaintiffs’ demand was properly chargeable on the trust subject conveyed by the deed of the 25th June 1810, and ought to be paid out of the rents and profits thereof in such manner as should be least injurious to the interests of the cestuis que trust* *and that Fleming the only acting trustee being dead, there was no person ' charged with the execution of the trust,- — therefore decreed, that the marshal of the court should take possession of the trust subject, real and personal, and annually rent and hire out so much thereof as should be necessary to raise the annual sum of 150 dollars (having regard to the convenience and interest of the widow Lucy Markham and her family) and annually collect the rents and profits, and, after paying his own charges and expenses, pay the plaintiffs annually on the 1st June, 150 dollars, until the debt due them (adjudged to be 257 dollars) with interest thereon from October 1818, should be paid; provided, that if Lucy Markham the widow, or after her death, the defendants who should then become entitled to the trust subject, or any person for them should, in each year successively, give bond with surety to the marshal, to make the annual payment of 150 dollars to the plaintiffs, then they should not be disturbed in their possession, respectively, of the trust subject.
    From this decree, on the petition of Lucy Markham the widow, an appeal was allowed by this court.
    ' The cause was argued by Stanard for the appellant, and Rhodes for the appellees* upon the following points—
    
      I. Whether there was any sufficient proof to establish the demand of the appellees on John Markham? and whether the letter of the trustee Fleming to the appellee Guer-rant of the 1st November 1818, amounted to an assumpsit of the debt?
    II. Supposing the demand established as against Markham, — whether any such debt contracted by him, could be charged on the prospective profits of the trust estate, so as to bereave his wife and children, especially after his death, of the use of those profits for their support and maintenance? 'The whole profits appearing from the estimated amount thereof, and the number of persons to be maintained out of them, to be inadequate to supply more than a bare subsistence to the cestuis que trust.
    *111. Supposing the letter of the trustee Fleming, to amount to an as-sumpsit of the debt, whether any act or as-sumpsit of the trustee, could rightfully pledge the prospective profits of the trust subject necessary for the current support of his cestuis que trust, to pay debts contracted even by the trustee himself for their past support? much more debts contracted by one of the cestuis que trust, now no longer entitled to the profits or any part thereof, against the will and without the knowledge of the trustee?
    
      
      Conveyance of Property in Trust for Maintenance of Grantor and Family — Rights of Cestuis Que Trust. — In the principal case a husband conveyed property in trust for the support of himself and wife and children. The husband contracted debts, without the assent of the trustee, and his creditors sought to subject the trust subject to the payment ot their demand. It was held that the husband could not derange the plan ol the trust, and thereby affect injuriously the interests of the other cestuis que trust. For this proposition the principal case' is cited in foot-note to Perkins v. Dickinson, 3 Gratt. 335; Nickell v. Handly, 10 Gratt. 341, 347. See discussion of this (tuestion of blended trusts in foot-note to this last case, where the principal case is cited. Johnston v. Zane, 11 Gratt. 570, and note; Armstrong v. Pitts, 13 Gratt. 213; Penn v. Whitehead, 17 Gratt. 515; Brown v. Lambert, 33 Gratt. 265; Bain v. Buff, 76 Va. 374; French v. waterman. 79 Va. 625; Salamone v. Keiley, 80 Va. 99; Hutchinson v. Maxwell, 100 Va. 169, 40 S. E. Rep. 656: Tyack v. Berkeley, 100 Va. 296, 40 S. E. Rep. 907; Guernsey v. Lazear, 51 W. Va. 328, 41 S. E. Rep. 408; note in 3 Va. Law Reg. 734. See also, Nixon v. Rose, 12 Gratt. 429, and Summers v. Bean, 13 Gratt. 422, both citing the principal case.
      In Doswell v. Anderson. 1 Pat. & II. 194, it is said: "With regard to tbe account of Dr. Fleming, that stands on a different footing. It seems to be a reasonable one. Tbe services were rendered to the beneficiaries and the trust slaves, and, no doubt, were necessary for their preservation. There was no improper dealing between him and any of the beneficiaries. When a physician is called on to visit the sick, humanity, and often urgent necessity, require his immediate attendance. 1-1 e cannot stop to enquire from whence his pay is to come, or to bargain with a trustee: and concurring, as we all cordially do, in the decision of the court of appeals, in the case of Markham v. Guerrant & Watkins, 4 Leigh 279, I am of opinion, that this account, on the authority of that case, should be paid, even if it should be necessary to sell a portion of the trust property for the purpose.”
    
   CARR, J.

The appellants allege in their bill, that they furnished supplies of merchandize to the amount of 344 dollars, for the use of Markham and his family, between the first of June and the last of October 1818, and that they furnished these supplies on the credit of the trust estate. Yet it is clear, these dealings took place without any previous directions from Fleming (the only acting trustee) to them, to credit Markham for the goods, or any communication with him on the subject. Was this a safe and prudent course in the plaintiffs? ■Could they charge the trust subject by crediting Markham, without the knowledge or assent of the trustee? Look at the circumstances of the case; the manifest occasion and intention, and the provisions, of the deed of trust. Here was a man with a wife and eleven children, whose habits and course were likely to waste his estate, and bring his family to want; to arrest this evil, and take out of his hands, the management of his affairs, and the power of dissipating his property, he is prevailed on to execute this deed, by which he strips himself of every atom of his estate; making provision for debts already contracted, but expressly disabling himself from so incurring future debts, as to make the property (no longer his) liable for them. This he had a right to do, and it was done openly; the deed was duly recorded, and the facts, of necessity, known to these appellants ; for they state, that they dealt upon the credit of the trust fund, and make the deed and exhibit. By this deed they were told, that this was a permanent *fund, the profits of which alone could be taken for the yearly maintenance of this large family; for it is clearly expressed, that the parties could not sell an atom of the principal except for the payment of the existing debts of Markham. Nor was the trustee as in the case of Scott v. Loraine, 6 Munf. 117, bound to permit the cestuis que trust ! ‘ to receive, take and enjoy all the interest and profits of the estate, 5’ thereby rendering it safe to deal with them to the amount of those profits; but the whole profits here, were to be applied by the trustees to the payment of the debts and support of the family. In Scott v. Loraine, the purpose of the deed was merely to intercept the marital rights, and shield the property from the husband’s creditors: here it was to shield it from the improvidence and waste of the cestuis que trust, and to make that which, under their management, would have been dissipated in a short time, a permanent fund, which should, from its profits, furnish some support to the family during the life of the father and mother, and then be divided among their children ; whereby they gained a vested interest, which, so far at least as the land was concerned, could not, even by a court, be divested during their infancy, except for debts of the grantor, existing at the date of the deed. The commissioner estimated the annual profits of this fund, at only 300 dollars; and we know that such estimates are generally beyond the mark. However this may be, it behooves every one, who deals on the credit of a fund like this, to look to the deed, and see how much can be disbursed; and to make his bargain beforehand with the trustee. In this case, then, I do not think, that the appellees, bjr their dealings with the family, acquired any right to charge the trust fund: if they did, every other person who chose to let the cestuis que trust have goods or property, would have the same right; and thus the check interposed by the deed would be destroyed, and one year’s extravagance swallow up the revenue of years to come, and leave the wife and children to starve.

*The appellees, however, do not rest their claim on the sole ground of this dealing with the familj'. After closing the account, they made application by letter to the trustee; and they rely .on his answer as an assumpsit of the debt.’ This letter acknowledges the receipt of their’s of the day before; and says he had had but a slight view of their account, which Markham had carried away with him, but that if they will agree to wait till the next crop, he will assume to pay them out of the trust estate, being willing, while he remains trustee, that every thing that should be made on that estate for market, should be applied to furnish necessaries for the family, though not at the will or caprice of Markham, who is generally much deranged in his mind. This, it will be observed, is rather a proposition to assume, provided the creditors would wait, that an actual as-sumpsit. But take it for an assumpsit; to what does it amount? A promise to pay out of the produce of the next crop made on the trust estate, for market. Could the trustee bind the fund in this way? Could he incur in one year, debts to the amount of several years profits, and thus by anticipation absorb the support of future years? I incline strongly to think not. He is intrusted with the fund, not to squander at will, but to husband, protect, and apply it according to a sound discretion, to the support of the family from year to year. In regard to this point, his duty resembles a good deal that of a guardian; who, we know, is not suffered in any year to go beyond the profits of his ward’s estate, without the express permission of the court. Here was a yearly fund of 300 dollars, for the yearly support of the family; to constitute which support, many articles would be necessary, besides merchandize; and yet we see, that, in the term of six months, these merchants have raised an account of more than the whole annual income; and that income, for the current year, having been already spent, this debt is to be thrown upon the next year’s revenue. The whole, will not pay it: how, then, was the family to be supported? The deed gives no power to the trustee to break in upon *the principal. Could he thus by anticipation rob the family of their support? I would much sooner say, that he should be personally bound by any such promise, than that he should bind the fund; and if before opening an account with the family, these merchants had applied to the trustee to know how far they might go in trusting the cestuis que trust, and he had said, “you may let them have goods to the "amount of 300 dollars,” I would have held him personally liable in the first place, and have left him to reimburse himself from any annual surpluses, after supporting the family, if any such should chance to occur. But they have taken no such prudent course; they have gone on at their own risk, to furnish goods to this family, to a most extravagant amount, compared with their income; and they must abide the consequences of their own imprudence.

Another objection to the claim of the ap-pellees, is, that they have not established their account. They rely for this, on the trustee’s letter, and the answer of some of the defendants; but these, in my mind, are very inadequate to the purpose. The letter cannot be fairly considered as the slightest acknowledgment of the justice of the items in the account; for the writer expressly says, that he had had but a few moments to look at it, and that he must get it again. He evidently had no idea of admitting the items; but merely meant to say, that he was willing the profits of the estate should be applied to what might be found due. So Mrs. Markham, in her answer, merely says that the plaintiffs furnished her husband with goods to a large amount; but this is wholly indefinite, and no more proof of the account rendered, than of one double its amount, and consisting of items wholly different. So of the answer of B. Markham ; it amounts to nothing like proof. The trustee in his answer objects strongly, both to the enormous amount of the account, compared with the income, well known to the plaintiffs, and also to many items in it; and disclaims all idea of intending to admit by his letter, any more than should be proved to be due.

*'Upon the whole, I think the decree should be reversed and the bill dismissed, without prejudice tp any other remedy to which the appellees may be advised to resort.

CABELL, J.

I concur in the opinion of judge Carr; understanding it, as we all do, not to deny the power of a court of chancery, to authorize the sale of the personal property of infant cestuis que trust, in cases where such sale shall be absolutely necessary for their support.

TUCKER, P. I concur also, with the same qualification.  