Berry v. Cross. to fill a vacancy occasioned by the resignation of Abraham Boerum, and was present at the two meetings last mentioned. On the first Monday of August, 1843, an election was held, seven trustees were voted in, and a certificate of their election was filed, —by which it appeared that all the original trustees were elected except the complainant and Boerum. The complainant attended at the election, and voted for a new trustee in place of Boerum, and for the six other original trustees, supposing that those six continued as a matter of course, and that he acted throughout only to fill Boerum's vacancy. The bill further stated that the trustees held a meeting on the 26th of August, 1843, at which the complainant appeared and claimed to act as trustee, but was prevented by the others. He demanded his seat as trustee, but it was refused to him by Mr. Cross, the president. He has ever since been prevented from taking any part in the management of the ferries and property. The bill denies the right of the stockholders to oust him in the manner stated; but the complainant has offered to resign and transfer the title to the property on being indemnified against the debts and liabilities which he had incurred as trustee. The answer of the defendants who were and claimed to be trustees, admitted most of the statements in the bill. It was silent as to the fact of any resignation by the complainant, but stated that he was present and participated in the resolutions to go into a general election of trustees, and was present at the election and voted for an entire board. The answer insisted that these acts were a resignation of his office of trustee, and conclude the complainant on that point. It appeared by the testimony, that Boerum resigned as stated in the bill, or had entirely refused to act further as a trustee ; that the complainant was not present at either of the meetings which directed the election and the publication of the notice of the same; that he was present at the meetings on the 2d and 5th of August, and at the election; and that when he filed his bill, the debts of the association were $3385, besides the covenants into which the trustees had entered in the ferry leases. The cause was heard on the pleading and proofs. Berry v. Cross The parties agreed upon the form of the decree to be entered, if the court were with the complainant. J. Dikeman, for the complainant. W. W. Campbell, for the defendants. THE ASSISTANT VICE-CHANCELLOR.-There is no provision in these articles for stated elections of trustees; but every vacancy among the trustees by death, resignation, or otherwise, was to be filled at the annual meeting of the stockholders. The fifth article declared that there should be a stated meeting of the stockholders once in every year, on the first Monday of This blank was never supplied or filled; and no such stated meeting appears to have been held. The seven trustees were elected in July, 1841, and the election in question was in August, 1843. The first inquiry is whether Jacob Berry's place as trustee was vacant at the time of the latter election. He never resigned. This is alleged in the bill, and is admitted by the silence of the answer in regard to it. If he had resigned, the fact must have come to the personal knowledge of some one of the trustees who are defendants. (Rule 17th.) Instead of his having resigned, he was present acting as a trustee, and his right thus to act conceded, on the second of August, 1843, which was after the election had been ordered and the notice published; and again on the fifth of August, which was the last meeting held before the election, and was only two days before it took place. So far as the complainant participated in the proceedings prior to the day of the election, his conduct is clearly referrible to the vacancy occasioned by the resignation of A. Boerum, one of the trustees. There was thus, no vacancy up to the day of the election. It is insisted that the complainant's voting for seven trustees on that day, was in effect a vacatur of his office, if not a distinct resignation. I think the former proposition depends upon the latter. There was no vacancy unless it were made by the voluntary act of the complainant; which act, whatever it may Berry v. Cross. have been in form, would be a resignation. Then was his vote, a resignation of his office? He voted for himself and all the trustees who were in office, excepting Boerum. His object is to be derived from this act alone. He said nothing which indicated a design to vacate or give up his post. This act surely indicated a directly contrary intention. It showed that he did not wish or intend to leave his place as a trustee. And I cannot perceive how there can be a resignation derived from conduct which evinces a determination not to leave the office, and where there is no proof of any intent to resign or vacate. It will not do to say that his vote for seven trustees, shows that he considered the whole number vacant. There is no evidence of what his view was; but it is plain he could not have deemed the whole vacant. There had been but one resignation, and no other was known to be in contemplation. He could not have known that the five other trustees would vote for any more than one person to fill the existing vacancy; and there is no proof that they did vote for more than one person. The notice of the election did not specify the number of trustees which was to be chosen. In fine, the complainant's explanation in his bill, is as probable as any that has been suggested; and far more probable than the idea that he intended to resign his office, or what is equivalent, leave it to the stockholders to say whether or not he should continue. The whole thing appears to be a misconception. If the act of voting at the election produced the vacancy, how could the stockholders there present, know of such vacancy so as to vote for supplying it? The vote was by ballot, and until the poll was closed, and the votes counted, it could not regularly be known that Mr. Berry, or any other of the six trustees, had voted for seven trustees, or had so voted as to vacate their offices; and thus none of the stockholders would know till it were too late, whether there was one vacancy or seven in the board of trustees. This view of the case relieves me from considering the regularity of the election in point of time. It is said that it was not at the stated annual meeting, and was not advertised as such. Wilkes v. Harper. On the other ground, I am satisfied that the complainant is still a trustee and was warranted in filing his bill. The arrangement made between the parties, will dispense with any farther provision than this, that the defendants pay the costs of the suit. WILKES and others v. HARPER and others. An executor, who was also a devisee and legatee, wasted a large portion of the assets of the testator being more than double his own proportion of the whole estate, and the other legatees were thereby compelled to pay a debt of the testator which he might and ought to have discharged out of the personal effects. In a suit between such legatees, and a creditor of the executor, whose judgment was a lien upon unsold real estate devised to the executor, it not appearing that the devastavit was committed before the docketing of the judgment; it was held, that the legatees could not have priority over the legal lien of the judgment creditor, to enforce their right against the defaulting executor upon the real estate so devised to him. If it had appeared that the whole devastavit had been accomplished before the lien of the judgment attached, quere whether the equity of the legatees should be preferred, against such real estate, to the lien of the judgment creditor? May 5, 6; August 12, 1845. THE bill was filed on the 24th day of July, 1844. The complainants are the executors, devisees and legatees of Charles Wilkes, who died on the 30th August, 1833, leaving personal property amounting to about $250,000-besides a large real estate. His executors were his sons, Horatio, Hamilton and George, and his widow Janet Wilkes; all of whom qualified. He gave to his widow the choice of two houses, (one of which, No. 28 Laight street, was selected by her,) to have during her life; also divers movables, and the income of $50,000. The residue of the estate, less some small legacies, he devised and bequeathed to his children. The executors entrusted the whole management of the estate to Horatio Wilkes. They sold all the real estate, except the house 28 Laight street, for $95,307. Previous to the 25th of Wilkes v. Harper. December, 1835, Horatio W. had received divers sums for income of the estate, and paid various claims upon it, and also the small legacies; and he then had remaining, $203,239 99, exclusive of the proceeds of certain lots. Of this amount, $50,000 was set apart to produce the widow's annuity. Hamilton Wilkes at that time received upon his distributive share of the property, $26,000, the proceeds of real estate sold by the executors; and the other children received from Horatio, in the aggregate, $101,802 50. This left in Horatio's hands $51,437 49, of the funds of the estate, exclusive of the annuity fund. The whole of this, and $27,000 of the sum set apart for the widow, he wasted prior to January, 1840. The sum left in his hands in December, 1835, was more than all the outstanding debts or claims against the estate. At the time of his death, Charles Wilkes had in his possession, $10,000 belonging to Mrs. Maria Garnett of the city of Paris, which he had invested in his own name for her benefit. The investment went into the hands of Horatio as executor, and continued in the same form. On the 1st September, 1840, the fund with unpaid interest, amounted to $12,592 40; and it was thenceforth held by Horatio, at the request of Mrs. Garnett, as the property and for the benefit of Miss Fanny and Miss Harriet Garnett, to whom Mrs. G. assigned the fund. Horatio Wilkes wasted and misapplied this fund and the securities in which it was invested. The Misses Garnett claimed the amount with interest from the estate of Charles Wilkes, and it was paid to them, amounting on the 1st May, 1840, to $12,734 73. Of this sum, $2400 was paid out of the remains of the estate, and there being no more of it left, Hamilton W. paid the balance, at the request of the other complainants, out of his own funds. A similar claim for $6000 and interest, had been made against the executors by William Banks, administrator of Margaret Campbell, which is now pending in the Court of Chancery.(a) Horatio Wilkes died on the 23d March, 1840, intestate, with (a) See the report of this case-post, Banks, Executor, &c., v. Wilkes. |