bonds amounting to nearly $4,000 years before their maturity. But this is not all. Throwing out of view all the contradictions and inconsistencies so palpable to any man of ordinary capacity, the statement in regard to the payment of creditors and distributees was not only unsupported by any proof, oral or documentary, but on its face was incredible. He had qualified on the 25th September 1865; he was in Baltimore in May 1866. Within the short period of seven months he, a resident of a section still then suffering from the disasters of the war, had found all the creditors of the estate, and with his own private means had paid them, had overpaid the distributees, and had actually anticipated repayment of the bonds falling due in the years 1867 and 1868. And these statements, we are told, Cooper confided in and advanced his money on the faith of them. The thing is incredible. But if he did it was a blind and foolish confidence and he must lie down under his own folly. He sent his agent all the way to Fauquier at his own expense to inquire into the value of the land-why did he not instruct him to inquire also into the condition of the deed of trust and the administrators accounts? Slight investigation, a little inquiry would have exposed the utter falsity of every material representation made by Charles Utterback. If the certificate of the commissioner had stated the administrator had laid vouchers before him showing payments to creditors and distributees, or the payment of the three bonds, there might have been some reason for giving credence to such a statement, but it says nothing of the kind. He has directed me (says the commissioner) to credit the amount of the three bonds in his administration account as assets received, and the same will be entered 1877. March Term. Utterb'k's adm'r v. Cooper. March Utterb'k's adm'r V. Cooper. 1877 in said account as having been paid by said Charles H. Utterback to the estate of his said intestate. One cannot but be struck with the conclusion reached in this certificate from the premises stated. There is no pretence or intimation, that any money has been actually paid; but a direction having been given to credit the bonds as assets, they will be entered in the accounts as having been paid. No intelligent mind could fail to comprehend at a glance what was intended. A scheme, under the forms of law, by which the debtor released his property from a perfectly valid lien, without paying a dollar, commits a devastavit to the irreparable damage of his sureties, or creditors and distributees, and thereby obtains a loan upon the security of the same property, with which to indulge his passion for the frivolities and luxuries of a gay life in a city, while the party concerting with him reaps a profit of nearly $1,800, and the brokers, agents and attorneys, around him, pocket fees and commissions to the amount of between six and seven hundred dollars. And thus a fiction of law, which, in the language of Chief Justice Shaw, has been established for purposes of justice, was to be used as an instrument for the infliction of a great wrong upon innocent parties. If this is not a just inference, why was not proof required of the payment of the first three bonds, of the payment to creditors and legatees? Why was not the settled accounts called for? They had been promised, and the trip to Virginia was made to procure them. Why were they dispensed with? The answer is, they could not be produced. But the same object could be readily effected in a different way. Charles Utterback, the individual, could pay the debt he owed his father, and discharge the lien by charging Charles Utterback, the administrator, with the amount, and thus all the impediments, in the way of a good title, be removed. It was but a scheme so to shape the administration account, as to throw upon the sureties, and if they were insolvent, upon creditors and distributees any loss that might accrue. There is no statute or rule of law which gives any efficacy to the certificate of a commissioner in chancery. His duties and functions are pointed out. He receives vouchers and papers of the fiduciary; he publishes notice that all parties interested may appear and protect their interests. When he completes the settlement he then returns it to court, where it lies till another term, that a still farther opportunity of making their objections may be afforded those interested in the estate. If no objections are made it is then confirmed, and until so confirmed it has no sort of value, and even then it is only recognized as prima facie evidence, liable to be surcharged and falsified. Here an effort is made, however, to give to a mere certificate of a commissioner in pais au efficacy not even accorded to a recorded settlement. It must be borne in mind that here no settlement of the accounts was made by the commissioner. Utterback withdrew the three bonds which he had delivered to that officer, and afterwards turned them over to the administrator de bonis non. This is denounced as an act of bad faith towards Cooper. It may be so. But if a fiduciary concerts with another to commit a fraud upon an estate, a court of equity would scarcely interfere to compel a specific execution of the contract. A refusal to consummate a fraud would receive the commendation of that court rather than its censure. So far from compelling Utterback to complete the transaction, whatever may have been his motives in refu VOL. XXVIII-36 1877. March Term. Utterb'k's adm'r V. Cooper. 1877 sing, this court would interpose to prevent its consum March Term. Utterb'k's adm'r V. Cooper. mation. Before leaving this branch of the case, it is proper to advert briefly to the letter written by Utterback's counsel. It is apparent that letter was a private one, intended only for the eye of the client. Upon what representations it was based it is impossible to say, unless we could know the statements made by the client to the attorney, which the latter cannot of course disclose. The counsel did not represent, nor profess to represent, the estate, nor those interested in it, but Utterback alone in his individual capacity. He was called on to see to the preparation of certain papers in due form, and the letter was a mere announcement to the client that they had been so prepared and were enclosed. It misled no one, and could not have done so, unless, indeed, upon a proposition of law rather hinted at than expressed. It certainly contained no statement of fact in the least calculated to produce a false impression. Cooper as perfectly understood the whole transaction without the letter as with it, and the use of it, under the circumstances, is but an attempt to give countenance to a scheme involving a gross breach of trust. It is said, however, and great stress is laid upon the point, that the object of Charles Utterback in negotiating this loan, in part, was to pay the debt due his father's estate; that it was understood between him. and Cooper the funds were to be applied first to the discharge of all incumbrances upon the land; and at all events he had money in his hands derived from the loan sufficient to pay that debt, and if he did not so apply it Cooper cannot be held liable for the misapplication, and the sureties to the official bond must bear the loss. Each one of these propositions is, I think, susceptible of a satisfactory answer. It is very true that Utterback now tells us his intention was to pay all his indebtedness; but he further tells us, that this intention was based upon the reprensatations of Cooper that the stock would sell on market at the price of fifty dollars per share, and with this fund in connection with the money advanced, he expected to liquidate all his liabilities. It is very manifest, however, that this was an after-thought; and that he never at any time had any such intențion. It is perfectly certain that Cooper himself never entertained any such idea. His pretension is that Utterback declared to him that the deed of trust was satisfied by payments to his father in his lifetime, and by the settlement of all the claims of creditors and distributees. Cooper could not therefore suppose that any part of the money was to be applied to a debt which he professed to believe was already settled. The amount of money to be advanced by Cooper was $4,980-in round numbers $5,000. From this, however, was deducted the sum of $1,686.57, to satisfy the two judgments constituting liens on the land, and about $650 fees and commissions of brokers and attorneys, who assisted in negotiating the loan, so that the whole amount paid to Utterback was $2,683. What was to be done with this? Let Cooper himself answer the question. "He (that is, Willis, who professed to act for Utterback) said Utterback wanted the money, $5,000," to pay off some judgments against him, and the balance to improve his house, and convert it into a summer boarding house. Another witness, Robert W. L. Rasin, a partner and agent of Cooper, and an officer of the "Navassa Phosphate company," states in his deposition, that Cooper told Willis that he must 1877. March Term. Utterb'k's adm'r V. Cooper. |