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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 242   View pdf image (33K)
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242 HIGH COURT OF CHANCERY.
upon the will of Ann Maccauley were introduced as evidence in
tins cause.
Upon this state of facts, the question is presented, and has
been argued, whether in case of a sale or division of the re-
maining trust property, the insolvent trustee of Richard W.
Higgins can be admitted to a participation until he shall have
first accounted for that portion thereof which it is apparent,
from his own testimony, he has received and applied to his own
individual benefit ?
In the event which has happened, the death of Mrs. Ann
Higgins in the lifetime of her husband, her children, the two
complainants, and Higgins, one of the defendants, were to re-
ceive share and share alike the property bequeathed by Mrs.
Maccauley and its increase, such being the express language of
the will, and it is therefore perfectly obvious that if the de-
fendant, Higgins, should be allowed to retain that which he
has already appropriated to his own use, and to receive his
share of what remains equally with the other children, he will
have enjoyed a larger portion of the proceeds than he is fairly
entitled to, and the provisions of the will must be disregarded
and frustrated.
Against a consequence so unjust, the principles settled by
the orders of the late Chancellor, in the case of Harwood's
estate, are in decided opposition, and without some controlling
authority overruling them, I could not bring my mind to a dif-
ferent conclusion. Here is a trust fund under the control of
the court, which it is asked to distribute among the parties en-
titled, and it appears by the evidence of one of them, who was
constituted also trustee for the others, under the authority of
this court, that whilst acting in that capacity he received and
applied to his own use a large part of the trust fund, and in
the face of that confession on his part, it is proposed that he
shall he allowed to come in equally with. the other cestui que
trusts in the division of what remains, without accounting for
that which ho has already received.
It is said, however, that before any notice can be taken of
the proceedings of the defendant, Richard W. Higgins, under

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 242   View pdf image (33K)
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