Green v. Green

¶1The opinion of the Court was delivered by

¶2This is the second time this action has been in this Court, involving, as it does, the disposition of questions arising from the receipt by a life tenant of $3,000, under a policy of insurance against destruction by fire of a dwelling house. The first appeal was disposed of in 50 S. C., 514. All that is now necessary to do', in referring to the first appeal, is to state that under it were disposed of: First, the demurrer of defendants to plaintiffs’ complaint on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled. Second, the demurrer of plaintiffs ho SO' much of the defendants’ answer as set up the defense that because the defendant, Lucy J. Green, had paid out of her own funds the insurance premium required to obtain the policy of insurance, taken in her own name, against loss by fire of the dwelling house in which, under the will of Lucy P. Green, she, Miss Lucy J. *204Green, had a life estate, she was entitled to- hold the $3,000 as the proceeds of the policy of insurance when the said dwelling house'was burned, as of her own estate in fee simple, freed from any and all right therein on the part of the remaindermen named in the will of said Mrs. Lucy P. Green, deceased, and their respective heirs at law. This demurrer of plaintiffs was sustained. And third, by the defendants, that the Circuit Judge who heard the cause, so far as preceding demurrers were concerned, Judge Buchanan, had no right to refer the issues of fact to be repoi ted upon by the master of Richland County. This was also overruled. The other grounds of appeal do- no-t need a recital- thereof just here. After the action was remitted to- the Circuit Court of Richland, and when it came before John S. Verner, Esq., as master for Richland County, three things happened, that must be s-tated. First, Mrs. M. Caroline Jervey, who was a defendant, departed this life on the 16th of September, 1898, and by due process her heirs at law, consisting of her husband, the Hon. W. St. Julien Jervey, and his two- infant children, Amaryllis Jervey and Allen J. Jervey, were substituted as defendants in her stead, and they 'adopted her answer as their own. Next, the defendant, Miss Lucy J. Green, offered to allow judgment to- be taken in this cause to the effect that the $3,000 insurance money is held ‘by her in trust for herself for life, with remainder as provided in the first clause of the will of Mrs. Lucy P. Green, and requiring her to furnish such security for the safety of the fund as the’Court might direct, and for the costs of the action. Lastly, an amendment was offered, and allowed, to-the answer of defendants, by which it was alleged that the plaintiffs are not entitled to- the relief prayed for: “1. Be^ cause the investment of the insurance money alleged in the complaint, and all the facts and circumstances connected therewith, were, well known to and acquiesced in by the ancestors of plaintiffs, the remaindermen, under the will of Lucy P. Gr^en, prior to their death, and more than sixteen years prior to the commencement of this action; and that by *205the acquiescence oí the said remaindermen and by the plaintiffs, the said remaindermen and plaintiffs have waived the alleged breach of trust, if any, and plaintiffs are now es-topped and 'barred from asserting the same. 2: Because the alleged cause of action-of the said plaintiffs accrued more than ten years before the commencement of this- action, and the said action is barred -by lapse of time and laches of the plaintiffs and their ancestors from who-m they claim.” - At the references before the master -both sides to- the controversy introduced testimony 'both oral and written.- .On-the 16th September, 1898,-thé master submitted his report containing hi-s findings of fact, to- which report neither side made any exception. So it stands as approved. Such report should be set out in full in the report of this cause, for the facts as there stated will be relied upon by us for a statement thereof, so- as to- avoid making this opinion top long. The cause then came on to- be heard before the Honorable Ernest Gary, as Judg'e of the Fifth Circuit. By his decree, among other things,'he maintained that the testimony failed to show that -any of the insurance money in the- hands of Miss Lucy J. Green was applied by her to the purchase of the brick yard tract, 417 acres of land (which Miss Green had sold for $10,000 in cash and $30,000 on a credit secured by bonds o-f the purchaser, nor to the purchase of the lot of land on Bull street) ; that the offer of Miss Green to- allow judgment in this action for $3,000 is all the relief the plaintiffs are entitled to; and having reached this conclusion, he declined to- consider the other defenses; but ordered the -complaint dismissed, reserving to- the plaintiffs a reasonable time to accept offer of judgment by Miss Lucy J. Green. From this decree of Judge Ernest Gary, the plaintiffs and the infant defendant, ,F. G. DeSaussure, by-John Kershaw, his guardian ad litem, have appealed, alleging error: “1. In finding that the Scott- and Brownfield judgments included one for $1,084.72, and in not holding that the money paid toN. Barnwell was applied as follows: $240.07 to- the Scott judgment, and $297.67 to the Brownfield judgment. 2. In *206stating that ‘counsel for plaintiffs contend in the argument, that inasmuch as Miss Green, by her purchase with the insurance money of an interest in the decree of foreclosure (under which the brick yard was sold), placed herself in such a position that she could not bid up to the full amount of the decree of foreclosure;’ whereas the contention of plaintiffs was 'that by her control of the third lien Miss Green was enabled to acquire the property at a price far below its real value. 3. In holding that M'iss Green’s offer of judgment gives to the plaintiffs all the relief to which they are entitled, and is in strict compliance with the decision of the Supreme 'Court rendered in this case. 4. In holding that the plaintiffs have failed to show that this fund was invested in the brick yard. 5. In holding that ‘Having a right to lend the fund, she (Miss Green) can only be held accountable for the original amount.’ 6. In ordering ‘that the complaint of the plaintiff be dismissed1.’ 7. In not holding that the dwelling house on the devised lot of land was clearly traced through successive changes into a policy of insurance, and on down into the Pendleton street lot, with the improvements thereon, and a bond for $30,000, secured by a mortgage of the brick yard tract. 8. In not holding that the corpus of the trust fund, consisting of $3,000 in 1877, had simply grown up into a fund worth about $40,000, through an increase in the valuation of property. 9. In not holding that the lien which Miss Green acquired on the brick yard tract and Pendleton street lot, enured to' the benefit of the remaindermen; and that if by reason of her control of such liens she was thereafter enabled to acquire such property, she held such property subject to- the same trusts as attached to the liens before her purchase. 10. In not holding that Miss Green, as trustee, having a lien on property which was sold under such lien, could not purchase such property for her own use to- the exclusion of the remaindermen, even by reimbursing them, if they elect to follow the property. 11. In not holding that the brick yard tract and the Pendleton street lot were worth more than the amount bid for them *207when sold, plus the trust money which she had previously lent on their security. 12. In not holding that Miss Green held the Pendleton street lot and the 'bond' for $30,000 secured by mortgage of the brick yard tract, only for her life, with the remainders over under the terms of the first item of her mother’s will. 13.. In not holding that H. P. Green holds the Heyward house and lot as trustee for Mrs. Hey-ward and her children, for the life of Miss Lucy J. Green, with a remainder over under the first item of the will of Mrs. Lucy P. Green. • 14. In not holding that the life tenant having acquired the brick yard tract and Pendleton street lot by the usé and employment of the trust fund, the remainder-men have the right to elect to- treat the said property as a part of the -trust estate; because a' trustee cannot malee any advantage to himself of the trust fund, nor employ the trust fund for his own benefit.”

¶3According to- the approved course, the defendants submitted the following additional grounds in support of the Circuit decree:

“1. Because the payment of the insurance money to- the life tenant and its investment by her in the loan to- the Charlotte, Columbia and Augusta Railroad Company, -and all the facts and circumstances connected'therewith, as well -as the claim of the life tenant -to- the fund as her individual property, being at the time'and more than eighteen years prior to .the commencement of this action well known to- and acquiesced in by the ancestors of plaintiffs, remaindermen under the will -of Mrs. Lucy P. Green: (a) The said remainder-men and the plaintiffs are by lapse of time and the statute of limitations now barred from establishing a trust therein, (b) The said remaindermen and the plaintiffs have waived (an'd lost any) right to assert or claim a trust therein by their laches, and are barred and estopped from establishing the same.

“2. That the repayment of the insurance fund to- the life tenant and its reinvestment by her in the loan to Allen- J. Green,.-as committee -of John S. Green, in 1878, upon the *208securities taken therefor (being a breach of-trust),.as well as the disavowal by the life tenant of any -trust relation to the fund,. and all the facts and circumstances connected therewith-, being at the time and more than eighteen years prior to the commencement of -this action by the life tenant, fully disclosed and well known to the ancestors of plaintiffs, remaindermen under the will of Mrs. Green, (a) The said remaindermen and-the plaintiffs are by lapse of time and the statute of limitations now barred from establishing a trust in such securities or the money collected therefrom, (b) By the acquiescence of said remaindermen and plaintiffs in such investment, plaintiffs are now estopped and barred from holding the -life tenant liable ft> any greater amount than the amount of money repaid her upon such securities, to' wit: $289.85.

“3. That the purchase of the brickyard tract in 1879 and of the Pendleton street lot in 1880, by the life tenant, as well as her claim- to' the same as her own absolute, individual property, and all the facts and circumstances connected therewith, having been at the time fully disclosed to the ancestors of plaintiffs, more than seventeen and -sixteen years, respectively, • prior to the commencement of this action, the plaintiffs are by lapse of time and the statute of limitations now barred- from establishing a trust in such land's or the proceeds of a sale thereof.

“4. That all the facts and circumstances in relation to the use of the insurance fund by Miss Green to disembarrass the estate of John S. Green, her brother, and one of the remain-dermen under the will of Mrs. Green, as disclosed by the testimony, show that there was a common consent by the other remaindermen, then all in esse, that Miss Green should have the absolute disposition and control of the insurance fund, with the declared intention of devoting the same to the comfort and support of the said John S. Green, and that the same was so used, and the Court will now uphold that arrangement as a family settlement, and will not, eighteen years thereafter and after the death of all of the remainder-*209men, permit the same to be violated or set aside by the plaintiffs, who are only heirs at law'of the assenting remainder-men.”

¶4If it had been necessary to look-for support to the Circuit decree outside of its own reasoning, the suggestions embodied in the “additional grounds” of the defendants are freighted with interesting questions, but, in reaching our conclusion, we have been able to -do so on the lines marked out by the Circuit Judge.

¶51 The two first exceptions are sustained. By inadvertence, no doubt, the Circuit Judge referred to- the Scott and Brownfield judgments as including one for $1,094.72, when such was not the fact. Nor was the Circuit Judge correct in ascribing the.contention to the counsel for plaintiffs, as set out in the second ground of appeal.

¶62*2103 *209To- avoid the appearance of dealing with the remaining grounds of appeal in a disjointed manner, we will give them our attention in our way. Unquestionably, -the former decision of this Court in sustaining the demurrer of the plaintiffs to SO' much of the answer of Miss Lucy J. Green as set up a freedom from any liability to- the plaintiffs for the amount of the insurance money received by her as the result of the accidental destruction of the dwelling house by fire in the year 1877, because, she said, she had taken out the insurance in her own name and paid the premium for such insurance with her own money, destroyed that defense, for we distinctly announced that we upheld the doctrine announced in Clyburn v. Reynolds, 31 S. C., where it was said: “We, therefore, think that a sound public policy requires that any money collected 'by a life tenant on a total loss by fire should be used in rebuilding, or should go to the remaindermen, reserving the interest for life for the life tenant.” In our former decision in this case we held in these words: “Evidently the judgment of the Supreme Court is bottomed upon the idea that the life tenant is an implied or quasi trustee for the remaindermen. Once you admit this trust relation between the life tenant and *210the remaindermen, then the conclusion is inevitable that the life' tenant cannot protect her own interest and disregard those of her quasi cestuis que trustent.” The respondent, Miss Lucy J. Green, realized the force of this decision; hence, when the action came before the master, she offered to allow judgment for the $3,000 insurance money to- go against her — in the words we have already hereinbefore quoted. The Circuit Judge has held that this judgment for $3,000 is all that should be pronounced against Miss Lucy J.. Green. Whether this conclusion of the Circuit Judge is tenable, we now propose to see. If he is correct, then the case is ended with that judgment; but if it is not correct, the results may be far-reaching as to this defendant, Miss Lucy J. Green. In our former decision we held that as to> this fund Miss Lucy J. Green held the position of an “implied or quasi trustee.” We must be governed by this holding, no' matter what may be the consequences. Is there any difference, in law and in equity, between express and implied trustees? To narrow the inquiry so that it may be kept within reasonable 'bounds in this discussion, we may ask is there any difference'admitted to exist in the dealings of a trustee of an express trust with the funds belonging to> that trust, as compared with the dealings of an implied or quasi trustee with the funds of his trust? Mr. Story in his work on Equity Jurisprudence (2 vol., section 980), says: “Express trusts are those which are created by the direct and positive acts of the parties by some writing, order, or will … Implied trusts are those which are deducible from the nature of the transaction, as a matter of clear intention, although not found in the words of the parties; or which are superin-duced upon the transaction by operation of law, as matter of equity, independent of the particular intention of the parties.” The distinction thus pointed out in the very definition of the two kinds of trusts, almost of necessity leads us to expect a strictness in the enforcement of the law governing the first class which, does not and ought not to obtain in the latter; for express trusts in their *211creation are the intentional work of parties, and set forth in writing; while, on the contrary, in the case of implied trusts, the parties to the same are often not conscious that their dealings in relation to a subject matter have anything of a trust character about them. We will pursue the consideration of implied trusts, and in doing so we observe that such trusts are said to' be either resulting or constructive trusts. Of resulting trusts, this Court has cited with approval, in the case of Rogers v. Rogers, 52 S. C., 392, the classification of Mr. Perry in his work on Trusts (3d edition), 138, into five divisions: “(1) When the purchaser of an estate pays the purchase money and takes the title in the name of a third person. (2) Where a person standing in a fiduciary relation uses fiduciary funds to purchase property and takes the title in 'his own name. (3) When an estate is conveyed upon trusts which fail, or are not declared, or are illegal. (4) When the legal title to property is conveyed, and there is no reason to' infer that it was the intention to convey the beneficial interest. (5) When voluntary conveyances are made, or conveyances without consideration.”

¶74 Applying the facts as developed by the testimony in the case at bar, within the limits of the findings of fact by the master, we find that the use of the $3,000 of insurance money was applied, if at all, in the purchase in part of the brick yard place; that the price of said brick yard place was the $2,500 paid tO' the sheriff of Rich-land County under the sale of said lands in foreclosure proceedings at the suit of Henneman and another, and the $176.66 paid by the defendant, Miss Green, for taxes. That these sums, $2,500 and $176.66, had no connection with the $3,000, the insurance money. But it is insisted, as predicated upon the finding of the fact by the master, that the defendant, Miss Green, had, previous to> this sale of the brick yard tract of land by the sheriff, applied $2,200 of the insurance money in her hands, in trust by implication, to the partial payment of the two mortgages which were the first liens upon those lands, and, therefore, in the first place, *212though not apparently used in the purchase of tibe brick yard lands, yet in reality it was part of such purchase money; and, in the second place, that if not an actual payment of the technical purchase money of said lands by Miss Green, yet as she had invested $2,200 of the money slhe held in trust in the purchase of a part of the mortgage debts of Henneman and another (which holding she had made junior in right to' Henneman and the other mortgage), and inasmuch as she placed $2,676 of her own money in this purchase, in equity the $2,200 of trust money should be esteemed a part of the purchase money. We are inclined to» 'hold that the plaintiffs have a right in equity to' consider that $2,200 of the trust funds were invested in the brick yard place, and that having been so invested, the transaction falls under the second division of resulting trusts, in the classification of Mr. Perry, previously referred to». But the serious question comes now.. Me this implied trustee has invested $2,600 of her own funds along with $2,200 trust funds in the purchase of the brick yard tract of land — will such an inter-mixture of funds by the trustee enable theseplaintiffs to claim the whole of the 417 acres of land? We doubt, if it were an express trust, that the cestuis que trustent could make good a claim to the whole trust, under the facts of this case. We feel sure that in this case of an implied trust, that the cestui que trustent could at the very best only claim 22-48 (in round numbers) of this tract of land, while Miss Green would hold the remaining 26-48 in her own right. Biit are the plaintiffs entitled to anything more than te> hold the proceeds 5 of the sale of the “brick yard place” as a security for the forthcoming of the $3,000 trust funds ? We are inclined to- the view that the plaintiffs must be limited to holding the proceeds arising from the sale of the brick yard place — say the $30,000 now due and secured by bond and mortgage — as a security for the$30,ooo of insurance money. It is in this way equity admeasures the rights of the parties growing out of a transaction wherein no evil intentions existed in any of them. There is no suggestion of *213insolvency of Miss Green. The only complaint or fault against Miss Green alleged was that she was too generously inclined in the way of gifts of property to those of her own flesh and blood,- who-, no doubt, the results of the war between the States had left not as wealthy as we could all wish they were. In reaching our conclusion that there was a resulting trust here, we have been guided by our cases— Mathews v. Heyward, 2 S. C., 245; Ex parte Trenholm, 19 S. C., 135; Jones v. Hughey, 46 S. C., 193; Gaines v. Drakeford, 51 S. C., 38; Rogers v. Rogers, 52 S. C., 391; McGee v. Wells, 52 S. C., 479. And in reaching the conclusion that the proceeds arising from, the sale of the brick yard place should only be considered as a security for the $3,000, we have depended upon our own convictions, under the proofs, of what was just and equitable between these parties litigant ; and our views have been re-enforced by the following cases and authorities: Mathews v. Heyward, 2 S. C., 245, where this Court quoted-with approval this language from Lewin on Trusts and Trustees, 762: “When a trust fund is traced into land, and the fund constituted a part only of the money laid out in the purchase, the Court has usually given a lien merely on the land for the trust money and interest …” Myers v. Myers, 2 McC. Chan., 264, where the Court puts the view in these words: “A person may sometimes, by mixing trust funds with his own, subject -himself to the loss of both, for it is his own fault if they have not been kept separate; but it does not appear to me that this is a case which will subject the defendant to the loss of-all the property he has in possession, merely because he cannot show what part of it has been purchased with the proceeds of the trust estate.” Adams Equity, page 143, where that author says: “In like manner, if an estate or fund has been changed by breach of trust, the cestui que trust may, at his option, waive its restoration, and may attack and follow it in its altered form- — e. g., if a trustee or executor purchase an estate with his trust money or assets, and the fact of his having done so be admitted or distinctly proved, the parties *214interested in the money may claim the estate; or if the purchase he made partly out of the trust fund and partly out of the trustee’s own property, they may claim a lien for the amount misapplied” (italics ours). 'But why multiply words, when of necessity such should be the result in equity ? We accordingly sustain the 4th exception.

¶8We accordingly overrule the fifth exception.

¶96 We sustain the sixth exception. The Circuit Judge having reached the conclusion that plaintiffs were entitled to have $3,000 secured under the offer of Miss Green, and to allow judgment therefor against her, ought to 'have so 'decreed, and not to 'have dismissed the complaint. Infants are before the Court.

¶10We have by the views we have taken held Miss Green liable for the $3,000 as a trust fund, and it is unnecessary to-lay any stress upon the slight investment of trust funds in the Bull street lands and houses, as the bond and mortgage for $30,000 is abundant security to plaintiffs for the $3,000 insurance money. Accordingly, we overrule this exception.

¶11We overrule the 8th exception. We view the lien of plaintiffs as only securing the $3,000 insurance money, and the same cannot increase except after Miss Green’s death, and that by interest which may thereafter be due.

¶12Our views necessarily overrule the 10th exception.

¶13We have held in effect as pointed out in the nth exception.

¶14We have refused to hold as pointed out for us in the 12th exception, and also'the 13th exception.

¶15We could not visit upon the implied trustee the serious punishment indicated in the 14th exception. Her conduct was technically a violation of an implied trust, but innocent in intention and holy in its purpose. Would that many other brothers or sisters may be found in our Commonwealth who would do as much as did Miss Green in soothing the ' last moments of an unfortunate and proud-spirited brother.

¶16It is the judgment of this Court, that the decree of the Cir*215cuit Judge be modified as herein indicated, and that the action be remanded to the Circuit Court to. pass the appropriate orders to preserve the $3,000 insurance money according to the offer of Miss Lucy J. Green, both as to1 the fund itself and the costs.

¶17concurring. There are no allegations in the complaint charging Miss Lucy J. Green with fraud. Indeed, it seems to be conceded on all sides that none was intended by her. This question will, therefore, not enter into the consideration of the case.

¶18The order of reference directed the master, “to take the testimony upon all the issues in the cause and report the same, together with any findings of fact thereon, to. this Court.” One of the issues in the cause was whether the land known as the “brick yard” tract was purchased with money derived from the policy of insurance. The master in his report finds specifically as matter of fact that the said tract of land was not purchased with trust funds, but with the individual money of Miss Lucy J. Green. There were no exceptions tO' the master’s report. Moreover, this finding of fact was concurred in by the Circuit Judge. As there were no exceptions filed to the master’s report, his findings of fact are conclusive upon this Court. Verner v. Perry, 45 S. C., 262. This, in my opinion, eliminates from our consideration the issue as to- the “brick yard” tract of land.

¶19Another issue in the cause was whether the lot at the corner of Bull and Pendleton streets was purchased with the funds belonging to the trust estate. The master’s report shows the details connected with the purchase of said lot. It was sold for $590. On the same day the personal property was sold for $291.80, and was purchased by Miss Lucy J. Green to the extent of $182.50. Miss Lucy J. Green paid $482.64 of the purchase money out of her'own funds. The *216master in his report says: “Of the proceeds of this sale, I find that Miss Green received $289.86 on account of her loan to Allen J. Green, committee, same being" credit on judgment of Scott, assigned to her as collateral security to the said note of Allen J. Green, committee.” Conceding the general principles of law to be that a life tenant is a constructive trustee for the remaindermen, and that when the life tenant invests the trust funds in her individual name in the purchase of property, the remaindermen may elect whether to hold the life tenant accountable for the trust funds, or have a trust declared in the property so- purchased, still it must be admitted that the facts of a particular case may be such that the application of these principles would work injustice to' the life tenant, in which case equity would withhold its aid. The question, then, is whether the facts of this case show that it would be unjust to allow the re-maindermen to elect either to proceed against the life tenant or to subject the said lot to- the operation of the trust. Miss Green labored under a mistake in supposing that the fund derived from the policy of insurance belonged to> her individually, and when she purchased the said lot it was not her intention to' purchase for the benefit of the remaindermen, but on her own account. Even if it was a technical violation of her duty as life tenant to' invest any portion of the insurance money in the purchase of property in her own name, it was not due to any want of care or act of intentional wrong on her part. These circumstances convince me that the Court of Equity should not exercise its powers, and that the judgment of the Circuit Court should be affirmed, especially since there is no question but that the remaindermen will get every cent of the original funds. I, therefore, to this extent,-concur in the opinion of Mr. Justice Pope.