HUME V. BEALE'S EXECUTRIX, 84 U. S. 336 (1872)

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U.S. Supreme Court

Hume v. Beale's Executrix, 84 U.S. 17 Wall. 336 336 (1872)

Hume v. Beale's Executrix

84 U.S. (17 Wall.) 336


1. Although a former suit about the same subject matter as a later one may not operate strictly as res adjudicata, yet it may well be referred to when it was heard on the scene of the transaction complained of and when it relates to a transaction forty years old as an element by which a conclusion at a later day in accordance with its result may be assisted.

2. The rule of equity applied that if a cestui que trust, after becoming sui juris, has with full knowledge of a breach of trust, for a long time acquiesced in it, equity will not relieve him.

3. Accordingly, a bill by cestui que trusts was dismissed where all the grounds of action had occurred between twenty and thirty years, and the alleged breach of trust had taken place thirty-seven years before the bill was filed, and the trustee was dead.

4. This although the cestui que trusts were women and the trustee a lawyer who had married their half-sister.

Benjamin Berry, of Prince George's County, Maryland, owning a farm in that county about twenty miles from Washington City stocked with thirty slaves and with proper animals and implements of husbandry, on which farm his son and the wife Eleanor of this son, with their three children, named respectively, Barbara, Amanda, and Rosalie, were living, conveyed it in March, 1826 (his said son having then recently died), to Robert Beale (a young lawyer of Washington City, a friend of the family, and who in 1829 married a daughter of the said Mrs. Eleanor Berry, by a former husband) on these trusts "and no other" -- that is to say,

"to retain the legal title to all the said property during the life and widowhood of the said Eleanor, and after her death or marriage, until such time as the eldest of the children shall

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come of age or be married, on which event or events the said Robert shall convey the unconditional title in fee to all the property, both real and personal, unto the said children and their heirs, or such of them as may be living at the time of such conveyance, and to the issue of any such as may be dead &c. . . . And the said Robert shall permit the said Eleanor to have and enjoy the sole and exclusive use of all the said property for and during the time in which she shall and may live and remain unmarried, without molestation or hindrance of him, the said Robert, or said Benjamin, or any other person or persons whatsoever."

On the 18th of December, 1827, Benjamin Berry, the grantor, died.

In the autumn of 1828, Mrs. Eleanor Berry took up her residence in Washington City, and there became acquainted with, and, as was rumored, was married (secretly, in order to avoid a forfeiture of her life estate), to a certain Col. Owings. While on the farm, according to the testimony, she "lived finely and entertained a great deal." Her course of life in Washington also was expensive. She had very little property of her own, and that not in money.

In the years 1828 and 1829, that is, after the death of Mr. Berry, the grantor, and before the year 1830, nearly all the slaves had disappeared from the farm; the slaves were

"not sold in a body but picked off one or two at a time -- that is, sent to a place where the traders could get them; locked up there till the traders came."

Most of the farm stock had equally disappeared.

Early in 1830, Beale filed a bill against Mrs. Berry in the High Court of Chancery of Maryland to prevent her from further disposing of the personal property. And immediately thereafter, in 1830, under or in consequence of some order of court, took possession of the land and what remained of the personal property.

In the summer of 1830, Mrs. Berry left her house in Washington City and never returned to it; "went off traveling," said a witness in the case, "where, I do not know."

In December, 1830, the three children, by their uncle as

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next friend (he residing on an adjoining estate), filed a bill in the County Court of Prince George's County, Maryland against Beale, Mrs. Berry, and Owings (to whom the bill alleged that she was married), setting forth the sale of all the personal property and waste of the proceeds and praying the removal of Beale as trustee, an account, and the appointment of a receiver. Mrs. Berry was not served with process, being off traveling. A receiver was appointed and gave bond. Beale appeared and answered. He admitted in his answer that Mrs. Berry, who, he asserted, had been rightfully in possession and control of the property, had, without his knowledge or authority, greatly impaired and injured the value of the trust estate, and alleged that, finding all other means ineffectual to prevent her further disposing of the property, he had appealed for protection to the High Court of Chancery of Maryland, which was granted, and that he had abandoned his residence in Washington at great personal sacrifice, and was living on the farm for the purpose of taking care of it and what remained of the personal property. He denied that he was in any wise remiss or negligent of his duties as trustee or that he had anything to do with the sale of the negroes or other personalty. The cause was regularly heard, and a decree made dismissing the bill.

In February, 1833, the daughter Barbara married Mr. Hume.

In 1834, the trust property was sold under a decree of the court, the share of each of the three daughters being $3,000. The share of the youngest daughter, Miss Rosalie, was left in the hands of Beale, who was entrusted by the said Miss Rosalie with the management of it. This money was paid, after Miss Rosalie's death, to her administratrix and sister, Mrs. Hume.

In 1839, Mrs. Hume attained the age of 21 years.

In September, 1842, Mr. Hume died.

In 1843, Mrs. Eleanor Berry was married to one Ferguson.

In November, 1844, Amanda married Mr. Crosby.

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In January, 1857, Mrs. Eleanor Ferguson (Berry) died.

In September, 1857, Mr. Crosby died.

In May, 1860, Miss Rosalie Berry died unmarried, her sister, Mrs. Hume, becoming her administratrix.

In November, 1866, Mr. Beale, the trustee, died, leaving his daughter executrix of his estate.

In April, 1867, the surviving daughters, Mrs. Hume and Mrs. Crosby (their husbands being now dead), filed a bill in the court below against this executrix of Beale, alleging that he had sold and converted to his own use a considerable portion of the personal property, the proceeds of which he had used very advantageously to himself, and had suffered Mrs. Berry, the widow, to squander the rest. The bill giving as an excuse for not instituting proceedings sooner, that Beale had from time to time put the complainants off with promises of settlement; that having married their half-sister,

"he took advantage of that relationship to abuse the confidence which the relationship naturally inspired and to turn the same to his own pecuniary interest and advantage."

The answer denied the breach of trust, and while alleging that the transactions narrated in the bill, so far as they were founded in truth, occurred nearly forty years before, and before the respondent was born, and consequently that she could have no personal knowledge of the circumstances, yet set forth a narrative of facts which tended to show that the waste of the property was committed solely by Mrs. Berry, and that Beale had used his efforts to prevent it, and did finally arrest it, but not until most of the personal property had been made away with. It stated that the farm and what trust property remained had prior to 1834 been sold by order of the court, by trustees duly appointed, and the proceeds distributed. It denied that Beale ever made the admissions, promises, and excuses alleged in the bill or that the complainants ever asserted against him in his lifetime the claim now made or any claim, and asserted contrariwise that the complainants had received all that they were entitled to, and that their husbands had used what money they

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had and left them, in widowhood, dependent on their relatives.

The answer set up also certain special defenses as:

The suit against Beale in the County Court of Prince George's County.

The statute of limitation [three years in the District], and independently of it the laches and lapse of time.

The testimony chiefly relied on by the complainants was that of Mrs. Hume, one of the complainants, of a white witness named Douglass, of another, named Brashears, and of two old colored servants, Johnson and Brooks, who had been on the farm.

The testimony of Mrs. Hume was received under the Act of Congress of July 2, 1864, [Footnote 1] which enacts that

"In courts of the United States there shall be no exclusion of any witness . . . in civil actions, because he is a party to or interested in the issue joined."

no objection having been raised to it, so far as appeared by the record, under the Act of March 3, 1865, [Footnote 2] amendatory to the said act, which amendatory act provides:

"That in actions by or against executors, administrators, or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward unless called to testify by the opposite party."

Mrs. Hume testified as follows:

"After my grandfather Berry's death in 1827, the property commenced to go. It went by degrees. From 1828 to the summer of 1830, everything was spent except some old negroes. They were sold by my mother and Mr. Beale. The real estate was sold by commissioners appointed by the court. My husband received my portion in person. Mr. Beale paid me my sister's portion in driblets. He never paid me anything else. I called upon him repeatedly to settle his trusteeship. Three or four years before his death, 'most every time I saw him, I

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asked him for a settlement, and told him my inability to live. I told him my situation, and told him it was very destitute. These conversations occurred almost every time I saw him. I told him almost every week, when I saw him, that it was high time to make a settlement. He did not give me any money, and he never made any settlement. He made a great many promises, and that is all. The reason I never instituted this suit before was he made so many promises from time to time that he would settle. He never made me any payments at all outside of the $3,000 which he received as my share of the proceeds of the farm. At the conversations I have spoken of about a settlement, no one was present but ourselves. He never talked before third persons unless they were interested. I occasionally wrote to Mr. Beale, and he answered my letters. In his letters he never spoke anything of the wasted property. I never wrote to him about any of it, except some servants that Otho Beale bought, and Mr. Beale (for me) brought suit to recover them. I always thought that Mr. Beale got part of the money that the personal estate sold for. My husband thought Mr. Beale had done very wrong. He was himself a lawyer. He spoke to me in his lifetime, in 1834 or 1835, of bringing a suit, and asked me to join him. I told him it was of no use, as Mr. Beale was poor and we could make nothing out of him at that time."

"I never was present when any negroes were sold. I never saw any money paid by the traders for them. My mother had some negroes which came by her mother's (Mrs. Lane's) estate. Mrs. Lane was rich. They came to her before her marriage with my father, Mr. Berry, Jr. They were made over to my half-brother and to Mrs. Beale, my half-sister."

Douglass, who testified that he had owed some money to Mr. Beale, said:

"Mr. Beale was pressing me for the money. He said that he owed these ladies (half-sisters of his wife) some money, and that he wanted the money for them. These conversations ran through a number of years, to the day that I settled with him. He said that he wanted $5,000. I do not remember that he mentioned real estate to me. He told me that the way he became indebted to the ladies was that he had charge of their money, and had borrowed it. He said that he must raise the

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money from me or sell his house to raise it. In speaking of these ladies, I think he mentioned one of them as Berry; he simply used the name of Berry."

Brashears testified only that he lived on an adjoining farm and knew Beale; that when Beale was appointed trustee, he was regarded as poor, and that he afterwards owned a house in which he lived; that he thought Beale had exercised control over the farm from the time he was married; and that "the property on it was pretty generally on the travel from the time Mrs. Berry moved to Washington till it was all sold."

One of the old slaves, Brooks, testified thus:

"Mr. Beale had no property, before he was married, but a house. After the deed of trust was given and Mr. Beale got the property in his own hands, he was like the green bay tree by the river of water. He spread out -- he got everything he wanted. He had control as a master over everything; to sell or not to sell, as he pleased. If he chose to do anything, Mrs. Berry could not stop him. I never saw him do anything, because I was not present, but I know he disposed of all the property. I never saw him take away any of the property; I mean, saw him sell any, and I never saw him receive any money for it. The only way that I know he sold the slaves was that I missed them, and as they could not be sold by law without his consent, I believe he sold them. I know it must have been done by his consent because nobody else could have done it. He was the guardian of the children. Before Mrs. Berry moved to Washington, she lived in very handsome style and had plenty of everything. She was rich."

The other negro, Johnson, testified:

"As far as I know, Mrs. Berry and Mr. Beale were hand-in-glove, and between them they sold the colored people; somewhere in the neighborhood of thirty-five; not one was left to tell the tale. Mr. Beale would come down from Washington once or twice a week. I don't know who received any of the money for the negroes. I have seen the negro traders there often. Mr. Beale would bring them down there from the city, and have the negroes hiding about like young rabbits. And I

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have often heard the servants say that they thought Mr. Beale ought to interfere and protect the children. I never knew him to interfere to prevent them being sold. He only told me that he would see that I was not sold to Georgia. My wife belonged to him. She came from old Mrs. Lane. I never saw Mr. Beale have any possession of any of the servants except when any of them were to be sold, when, of course, he always had a hand in it. There were only two old men and two old women, three or four house servants, and myself left on the farm after Mrs. Berry came to Washington. I flew the track; they sold me running. I think one of the old ones that were left was afterwards sold to a brother of old Mr. Berry. Mrs. Eleanor Berry had no property when she married young Mr. Berry. His father gave him the farm, and stock, and servants, and let him have it to make what he could, but gave him no title to it, or any of it, because his wife had the reputation of being an extravagant woman, and he was fearful that the children might come to want."

Certain letters were introduced by the defendants from Mrs. Hume to Mr. Beale, by way of discrediting her testimony. They were of a very confidential kind. Parts of them were thus:

"NASHVILLE, December 1, 1837"

"DEAR MR. BEALE: You will oblige me very much, if you can spare the time, to go to Marlboro' this court for the purpose of getting the money, or a part of it, that is due me. I am very much in want at this time. I would not trouble you, but necessity is the first law of nature; therefore I was compelled to address you. My circumstances are such that I cannot do without a little money. Mr. Hume is out of employment entirely; dissipated and too indolent to exert himself for a support. We are all living with his mother; she is not able to keep us, and can hardly get along with her own family. I cannot stay here. I am a stranger here, no one to aid me in the most trifling matter. If I was where I was known, I could get along somehow or other. I should like to be with my relations. I think Otho Beale would help me if he knew my situation. I should like to get in a school as an assistant teacher, so as I could be making a living for myself and children. I would exert myself to the utmost to get along. I have said enough of this matter for you

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to judge of my situation. . . . I wish I had never have left the city, and have taken your good advice. I cannot say any more. You can see what my feelings are. Do answer this, and please to attend to the request I have made of you about getting the money. Give my best love to sister and brother, and accept a great share of love from"

"Your true friend,"


"June 5, 1846"

"R. BEALE, ESQ.: Your note has been received in which you refuse to see me again, and, strange to say, you have charged me with falsehood, duplicity, and treachery. What crime have I committed that you should apply such epithets to my name? Thank God, I have an approving conscience; one that can say I have never, my dear brother, wronged you in thought or word. I always spoke of you in the most affectionate manner. I admit I have been in error, but am ready to make reparation. Don't judge me so harshly. You have wronged me. Forgive the innocent. I truly repeat, my dear brother, speak kindly to me, and don't cast me on the cold world without a cent. I will go to Baltimore; stay there in retirement. Time will show you that I am not what you consider me. I will not stay here longer. . . . Soon a lonely grave will be the only mark that I shall leave behind me. I wish to see you once more. I shall be then better satisfied. Don't refuse me this small favor. No money or friends! Heaven's support in this hour of affliction is all I pray for."


It appeared that the husbands of both Mrs. Hume and Mrs. Crosby (the daughters Barbara and Amanda) were improvident men who always wanted money.

The court below being equally divided in opinion, the bill was dismissed, and the complainants took this appeal.

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