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to add and state the same on such invoice or entry shall not be cause of a forfeiture of such goods, wares, and merchandise, or of the value thereof; but in all cases where the same, or any part thereof, are omitted, it shall be the duty of the collector or appraiser to add the same, for the purposes of duty, to such invoice or entry, either in items or in gross, at such price or amount as he shall deem just and reasonable, (which price or amount shall, in the absence of protest, be conclusive,) and to impose and add thereto the further sum of one hundred per centum of the price or amount so added; which addition shall constitute a part of the dutiable value of such goods, wares, and merchandise, and shall be collectible as provided by law in respect to duties on imports. In the execution of these statutes the treasury department has heretofore uniformly construed them to apply, so far as inland transportation is concerned, only to such transportation where the place of the growth, production, or manufacture of the article is in the same country as the port from which the vessel sails on which the shipment is made, and not where such transportation is through other countries to reach a place of shipment. Thus, in a decision rendered September 12, 1882, where goods were forwarded from Brodenbach, in Austria, to Hamburg, transhipped to Hull, and then placed on the import vessel, the journey to the United States being continuous, the appellants claimed that no charges accruing after the goods left Austria should be added to make dutiable value, and the treasury department sustained the claim, observing as follows: "This claim seems to be well founded, in view of the long-established practice in such cases, and of articles 434-444 of the regulations of 1874, which provide in substance that, in the case of merchandise imported from an interior country through the ports of another country, or from the country of its production, manufacture, or procurement via another country, no charges shall be added for transportation accruing after the departure of the merchandise from the country of production, if the collector shall be satisfied that the merchandise was exported from such country with a bona fide intention of having it transported to the United States." A decision by the department, made some years before, also illustrates the construction when the two places, that of production and that of shipment, though separated from each other by water, belong to the same country. The charges for railroad and steam-boat transportation of goods from Dundee, in Scotland, to Liverpool, in England, were added to the invoice price to make the dutiable value of the articles imported into this country. The importers objected to these charges, and cited article 441 of the regulations of 1874, referred to in the above decision, in support of their claim; but the treasury department held that the regulation was applicable only where the goods were transported to some port of another country from the country of production for shipment to the United States, by a practically continuous voyage, and was not applicable to shipments from Scotland through England, which are, to all intents and purposes, the same country. This construction of the treasury department we think a sound one. It places articles which are the growth, product, or manufacture of countries whose ports of easy shipment are found in other countries through which the goods must be carried, on a basis of equality with the products of those countries which have convenient ports of shipment. To preserve this equality, the shippers are not obliged to confine their shipments to their own ports, when ports of other countries would be equally or more convenient to them. This construction of the department has been followed for many years, without any attempt of congress to change it, and without any attempt, as far as we are advised, of any other department of the government to question its correctness, except in the present instance. The regulation of a department of the government is not of course to control the construction of an act of congress when its meaning is plain. But when there has been a long acquiescence in a regulation, and by it rights of parties for many years have been determined and adjusted, it is
not to be disregarded without the most cogent and persuasive reasons. v. Hill, 120 U. S. 169, 182, 7 Sup. Ct. Rep. 510; Ū. S. v. Philbrick, 120 U. S. 52, 59, 7 Sup. Ct. Rep. 413; Brown v. U. S., 113 U. S. 568, 571, 5 Sup. Ct. Rep. 648. The technical objections taken by the government counsel we do not think tenable. The duties were not finally liquidated until the 24th of May, 1882. The time to protest did not begin to run until then. The previous liquidation on the 5th of May was necessarily abandoned by the corrections subsequently made. The letters of the acting secretary were sufficient evidence of the appeal from the decision of the collector. The question was not as to the contents of the appeal, but whether any appeal was taken. The acknowledgment of the acting secretary, who decided the matter appealed, was sufficient for that purpose, and also of the affirmance of the decision of the collector. The bill of exceptions also states when the decision of the secretary was made. Of course that presupposes the receipt by him of the appeal. The date of "May 25th," in the letter of August 12, 1882, was evidently a misprint for "May 27th." But, if it were not so, the treasury department not having seen fit to place its decision upon the ground that the appeal was too early, we must assume that there was good reason for its action. Judgment affirmed.
ALLEN v. GILLETTE.1
(May 14, 1888.)
EXECUTORS AND ADMINISTRATORS-PURCHASE OF DEVISEE'S INTEREST ON FORECLOSURE SALE-TRUSTS.
An executor who, at the foreclosure sale under a mortgage given by one of the devisees of her interest in the testator's estate, purchases the same for himself, there being no trace of fraud in the matter, does not hold the property in trust for her.
Appeal from the Circuit Court of the United States for the Eastern District of Texas.
John T. Brady and H. F. Ring, for appellant. T. N. Waul, for appellee.
LAMAR, J. This is a suit in equity in the circuit court of the United States for the Eastern district of Texas. The bill sets forth that complainant, Fannie B. Allen, a citizen of Kentucky, is the granddaughter of James Morgan, who died in 1866 seized and possessed of an estate of 70,000 acres of land, and a homestead in Galveston, with some personal property. The land was unproductive, and scattered throughout the state. The deceased devised his property to seven grandchildren, of whom complainant was the oldest, and who in 1866 married at the age of seventeen years. By the terms of the will, Henry F. Gillette, George Ball, both of Texas, and W. H. N. Smith, of North Carolina, were appointed executors. They were authorized, after probating said will, and filing inventory and appraisement of the property, to administer the estate without any accountability to any judge or court. Gillette and Ball, on being duly qualified, entered upon the management of the estate. On the 13th day of June, 1872, complainant and her husband, H. A. Allen, gave their note for $1,200, payable six months from date, with 12 per cent. interest, to the Banking & Insurance Company of Galveston; to secure the payment of which note they also executed a deed of trust on all complainant's interest in the various tracts of land described in said deed belonging to the estate. Complainant and her husband being unable to pay said note when it became due, the deed of trust was foreclosed, her interest in said estate was sold thereunder, and the said defendant, Gillette, became the purchaser of said interest at the foreclosure sale. The complainant alleges, at length, that, being poor and in needy circumstances, arising from the failure and refusal of said de
1 See 21 Fed. Rep. 273.
fendant to settle up the said estate so as to let her have her portion thereof, or to render it available to relieve her pressing necessities, she was induced, by the advice of said defendant, to borrow said money from the bank, and to execute the said note and deed of trust, which she would not have done but for defendant's promise to make her said interest in the estate available, so as to pay off said note, and thus prevent the sale under the deed of trust. She further alleges that, by withholding from her information as to the condition and value of the estate, and making no reports to the court, the defendant obtained an undue advantage over her, and was thereby enabled to bid in her interest for much less than it was worth at the time of the sale. After alleging other circumstances of wrongful conduct and dereliction of duty, she states that owing to enforced absence from Texas, to her poverty, and to the ignorance in which she was kept as to the real facts relative to her father's estate, it was not until a few months before this suit was commenced that she, by accident, discovered that she had any lawful claim to recover of said defendant her interest in the lands purchased by him. The bill closes with the prayer that she be allowed to redeem said land from the said defendant, Gillette, by paying said purchase money, and that, in the event of her being unable to redeem it within such reasonable time as the court might direct, then that the land be resold for her benefit, paying the defendant the amount of his advances and interest; that the said defendant be required to answer under oath each and every allegation of the bill, and to make a full account of all his actings and doings as executor of Morgan's estate. The defendant denies the allegation that the note and mortgage were executed by said complainant at his (defendant's) suggestion, by his advice, or with his approval, and alleges, in specific detail, that each and all the statements in the bill as to his (defendant's) conversations, actions, or privity with said complainant and her husband, or said company, in any manner leading to or connected with said loan, note, and trust deed, are wholly untrue and unfounded; and avers that he was entirely ignorant of the borrowing of the said money, and of the execution of said note and deed of trust, and of any and all negotiations with reference thereto, or of any purpose of the kind on their part, until long afterwards, when he happened to see in a newspaper an advertisement of the sale to be made under the trust deed by complainant and her husband. The answer proceeds to give a full recital of the circumstances of defendant's purchase of said interest, declaring that having failed in his efforts to prevent said sale or to secure any better price to be paid, and that having ascertained that the property would be inevitably sold, he attended and purchased said interest, bidding the amount of said debts and expenses of the sale, and that said husband of complainant was present at the sale, repeating his assurance, previously given, of satisfaction at the purchase of defendant in his own personal right and for his own benefit, and without trust or liability to complainant. Defendant further alleges that the price was entirely adequate to the value of the interest at that time, and denies the allegations of complainant to the contrary; alleges that said lands were appraised at 25 cents per acre, that the indebtedness of the estate exceeded $20,000, that if settlement had been forced it would not have yielded sufficient to pay the indebtedness, and that the policy of paying off the debts gradually, by inducing creditors to accept lands in settlement and selling in small parcels on time, thus saving all the lands they possibly could for division among the grandchildren of Morgan, was known to and approved by the relations and friends of the other six minor children. He denies all concealment of the condition and indebtedness of the estate from complainant and her husband, who was a young man of good business qualifications, fully able, so far as defendant knows and believes, to maintain his family in comfort by economy and industry; and in specific detail shows how he (the defendant) acted in good faith, with all reasonable diligence, in the
discharge of his trust to the creditors and devisees of the estate. The case was set for hearing upon bill and answer, and the exhibits to the bill and answer, respectively. Upon the trial the court held that the complainant was not entitled to the relief prayed for in her bill, that no fraud was shown to have been committed, and that the defendant acted in the purchase with good faith; and rendered a decree against complainant dismissing her bill, with costs.
The complainant in this case prayed that the defendant be required to answer upon oath, fully and distinctly, each allegation of the bill. He did answer, and repelled every allegation of suggestion or knowledge on the subject of complainant's transactions with the bank, or of any approval of them after he was informed of them. His answer is corroborated by the circumstances and facts developed. There is not in those circumstances the slightest trace of fraud, false representation, or unfair dealing on his part in making the purchase, or of inadequacy of the price paid. It is, perhaps, worthy of remark that counsel for complainant, both in oral argument and printed brief, was particular to call especial attention of the court to the fact that it is not alleged "that the defendant was guilty of fraud of any kind, either express, implied, or constructive;" nor is it claimed that the facts alleged in the bill show fraud of any kind on the part of the defendant. The theory of his case is that, on account of the fiduciary relation of the defendant, the law conclusively presumes that he made the purchase for the benefit of the complainant as the cestui que trust; and that he thereby acquired only the right of holding the property as a trust mortgagee, and was entitled to realize what he had paid for it in the same manner as a mortgagee realizes from his investment. This is the whole extent of the claim; not that the purchase shall be set aside and declared void for fraud of any kind, either express or implied, but that it should be upheld and made to operate as a resulting trust for the benefit of the complainant. It must be conceded that, as a general rule of equity jurisprudence, a trustee or person acting in a fiduciary character for the benefit of others cannot become a purchaser at his own sale, or acquire any interest therein, without the express consent, or under a special permission, given by a court of competent jurisdiction. The cases cited by counsel for appellant abundantly support this doctrine. It applies to executors and administrators, who are not permitted to derive a personal benefit from the manner in which they transact the business or manage the assets of the estate intrusted to them; but whatever advantage is derived by them from a purchase at an undervalue is for the common benefit of the estate. In this case the precise nature of the trust, as well as the character and limits of the relations of the executor to the estate, are fixed with precision by the terms of the will, which is as follows: "I do hereby constitute and declare the children of Son Kosinsko Morgan and his wife, Caroline, to-wit, Fannie Belle, Charles W., P. May, Maria Orphelia, and Nellie Latham, and Ellen Lee, the daughter of my daughter Othelia Lee, my residuary legatees; and to them, in equal shares, I will, devise, and bequeath all my estate and property, both real and personal, wherever the same may be, after all just debts against my estate and expenses accruing in the settlement thereof shall have been paid and discharged. I hereby constitute and appoint George Ball, of Galveston county, and H. F. Gillette, of Harris, both of the state of Texas, and Mr. Wm. H. N. Smith, of Murfreesborough, N. C., the executors of this, my last will and testament, (and to qualify without bond;) with power, jointly or either two of them, to do all such acts and things, to sell any property necessary for the liquidation of debts, and to take all such steps and measures as may be necessary or expedient in the discharge or execution of the trust hereby reposed in them, and in payment and discharge of all the provisions and bequests herein contained, and in the administration of the estate and property devised and disposed of by virtue of this testament. And, finally, it
is my special desire that when this, my last will and testament, shall have been proven and recorded, and an inventory and appraisement of my estate recorded in the probate court, neither such court nor any other shall have anything further to do with the administration of my estate; but my said executors, George Ball, H. F. Gillette, and W. H. N. Smith, or any two of them who shall qualify and act, shall have full control of my estate under the will, without accountability to any judge or court further than before expressed by the will." It is clear that, with the exception of the exemption of the executors from accountability to the court in the details of administration, the trust created by this will is the same that attaches by operation of law to any executor, to-wit, a trust to pay the debts of the estate, and then to deliver over the remainder of the lands for partition among the devisees or heirs. The subject-matter of the trust in this case is the whole estate in its entirety (1) for the common benefit of all the creditors; and (2) for the common benefit of all the heirs or devisees. Respecting these creditors or devisees in their separate and individual capacity, he is not the representative or guardian of their person or property, and can exercise no legal control over either. The disposition which a single creditor may make of his debt against the estate, or the sale or other disposition which an individual devisee may make of his individual interest in said estate, cannot interfere with the executor's control of the estate for the payment of the debts of the creditors, on the one hand, or for its ultimate partition among the devisees, on the other; and both are, therefore, matters entirely outside of his trust and his office. We have already taken it as true that fraud is out of the question in this case, and that the defendant had no agency in the borrowing of the money, and incumbering her separate interest, as above described by the complainant. She had, in conjunction with her husband, absolute authority to contract that debt, and to convey her interest in the lands of the estate in trust to the bank, with a power, in case of default of payment, to sell said property. Having this right free from any power of interference on the part of the executor Gillette, it must follow that the debt was a legal one, the incumbrance a valid one, and the sale under it by the trustee in the deed equally valid and legal. Up to this point the defendant occupies no relation of trust or confidence to the transaction. With no legal power over any of the contracting parties, with no right to interfere with the trustee, to whom full power by the deed is lawfully given to sell the incumbered interest at public auction, he has no trusteeship in regard to it, no duty to perform in respect to it. The debt itself, incurred by complainant, constitutes no part of the liabilities of the estate which he, as executor, represents. The sale, when made, touched that estate nowhere, did not diminish its assets in the least, nor withdraw from it any lands subject to the debts of creditors, and to the ultimate partition of the devisees and their assigns. There is nothing in the transaction, from its inception to its final consummation, that imposed upon the defendant any duty incompatible with his right as a purchaser at the sale. The principle that a trustee may purchase the trust property at a judicial sale brought about by a third party, which he had taken no part in procuring, and over which he could not have had control, is upheld by numerous decisions of this court and of other courts of this country. Precost v. Gratz, 1 Pet. C. C. 378; Oil Co. v. Marbury, 91 U.S. 587; Chorpenning's Appeal, 32 Pa. St. 315; Fisk v. Sarber, 6 Watts & S. 18. It is true that the rule upon this subject, as stated by some text writers, is more stringent than that stated in these cases. 1 Perry, Trusts, § 205; Hill, Trustees, 250. We think, however, that the language employed by them does not present a thorough and perfect generalization of the essential principles pervading the decisions upon this subject. They are in manifest conflict with the uniform current of decisions of the supreme court of Texas, which are our guides in this case. Erskine v. La