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UPSHUR V. BRISCOE, 138 U. S. 365 (1891)

U.S. Supreme Court

Upshur v. Briscoe, 138 U.S. 365 (1891)

Upshur v. Briscoe

No. 146

Submitted January 12, 1891

Decided February 2, 1891

138 U.S. 365


The cases reviewed on the question of what are debts created by a bankrupt while acting in a fiduciary character, so as not to be discharged, under § 33 of the Bankruptcy Act of March 2, 1567, c. 176, 14 Stat. 533.

The obligation in the present case held to have been discharged.

A debt is not created by a person while acting in a "fiduciary character" merely because it is created under circumstances in which trust or confidence is reposed in the debtor in the popular sense of those terms.

In this case it was held that the widow of the bankrupt, who was alleged to be a fraudulent grantee, was entitled to the benefit of his discharge, she having pleaded it.

On the 25th of January, 1857, James Andrews, of the Parish of Tensas, in the State of Louisiana, executed and delivered to William J. Briscoe, also of said parish and state, the following instrument in writing:

"James Andrews to Annie M. Andrews"


"State of Louisiana"

"Parish of Tensas"

"Know all men by these presents, that I, James Andrews, of said parish and state, do nominate, constitute, and appoint William J. Briscoe, also of said parish and state, my true and

Page 138 U. S. 366

lawful attorney for me and in my name to pay, or cause to be paid, to Annie M. Andrews the sum of seven hundred dollars ($700) annually, said amount to be paid at the counting house of some commission merchant, or at some banking house, in the City of New Orleans, in equal quarterly installments of one hundred and seventy-five dollars each, said commission or banking house to be named and specified before the day of payment, by the said W. J. Briscoe to the said Annie M. Andrews. The said payments are to be made commencing with the date of this instrument, and continuing during the natural life of the said Annie M. Andrews, subject to the conditions and restrictions hereinafter enumerated, viz., the payments are to be regularly made as above set forth, according to the discretion of the said William J. Briscoe of the general good conduct of the said Annie M. Andrews, which conduct must in all respects comport with the character and bearing of a discreet, prudent female."

The said William J. Briscoe, being here present, accepts this appointment and trust, and binds himself to carry out the provisions of the same according to its true intent and meaning, and I do further constitute and appoint the said William J. Briscoe my attorney in fact to have and receive the sum of ten thousand dollars ($10,000) to be held by him for the benefit of the said Annie M. Andrews, subject to the conditions hereinafter enumerated, viz., it is understood that the annual payment of seven hundred dollars, as above secured, shall be considered as interest upon said amount of ten thousand dollars, and first it is provided that in case the said Annie M. Andrews shall hereafter marry and leave issue, this amount of ten thousand dollars shall remain invested as heretofore in the hands of said William J. Briscoe, and the interest shall continue to be paid as heretofore mentioned, and in case of the death of the said Annie M. Andrews, such children, legal issue of her, shall become possessed of the above amount of ten thousand dollars unconditionally in full possession, to be paid by the said William J. Briscoe.

"Second. It is provided that in case of my death occurring before that of the said Annie, the above amount of ten

Page 138 U. S. 367

thousand dollars shall be placed unconditionally in her hands by the said William J. Briscoe, provided only she shall have no legal issue. In case, however, she shall at the time of my death, have any child or children, legal issue of her body, that the provisions heretofore enumerated shall be strictly adhered to,"

"And third, it is provided that in case of the death of the said Annie M. Andrews without legal issue of her body surviving, then the above sum of ten thousand dollars shall revert to me, my heirs or assigns."

"This done and signed at St. Joseph, in said parish and state, this 25th day of January, A.D. 1857, in presence of Geo. W. Williams and Edgar D. Farrar, competent witnesses."




On the same day and on the same paper, Briscoe signed the following instrument:

"And now to these presents also comes William J. Briscoe, who accepts this mandate in all its clauses, and binds himself faithfully to carry the same into effect, and the more effectually to secure the faithful performance of the same he also binds himself, as surety for the said James Andrews, that the within mandate and all the stipulations therein contained shall be well and faithfully executed, and that the same shall be complied with in all its clauses."

"Thus done and signed at St. Joseph, on the 25th of January, A.D. 1857, in the presence of G. W. Williams and Edgar D. Farrar."





Annie M. Andrews, named in the paper signed by James Andrews at the same time and place signed the following instrument:

Page 138 U. S. 368

"And at the same time and place also came the said Annie M. Andrews, who hereby declares that she accepts the above in all its parts and clauses, ratifying and accepting the said appointment of the said William J. Briscoe as her trustee, and binding herself to confirm and abide by the above mandate in all its provisions."

"Thus done and signed at St. Joseph, on the 26th of January, A.D. 1857, in presence of Geo. W. Williams and Edgar D. Farrar."





On the 18th of February, 1857, these papers were all of them recorded in the office of the recorder of the parish, in a "book of Wills and Donations."

On the 1st of August, 1881, Annie M. Andrews, who had become by marriage Annie M. Upshur, and whose husband had died, and her son, James A. Upshur, an adult, filed their petition in the Ninth District Court for the Parish of Tensas, Louisiana, against Mary E. Castleman, widow of William J. Briscoe, who had died about September, 1880, intestate, and his three daughters and heirs at law and legal representatives, Mrs. Elizabeth Clinton, Mrs. Frances Chamberlain, and Mrs. Betty Scott Goldman, and their respective husbands. The petition set forth the three instruments signed, respectively, by James Andrews, W. J. Briscoe, and Annie M. Andrews, and averred as follows: William J. Briscoe received from James Andrews the sum of $10,000, and paid to the female plaintiff annually $700, until about January, 1861. On February 26, 1866, Briscoe, to secure the payment of his five promissory notes for $10,000 each, given for borrowed money, mortgaged to Given, Watts & Co., of New Orleans, all the property owned by him, consisting of a cotton plantation in the Parish of Tensas, known as the "Mound Plantation," embracing 4,357 acres, with all the growing crops, buildings, household furniture, machinery, corn, stock, fodder, hay, and all other appurtenances. On November 29, 1866, he intermarried

Page 138 U. S. 369

with the defendant, Mary E. Castleman. On January 14, 1868, Mrs. Mildred Gregory, as holder of three of the five notes secured by said mortgage, instituted suit thereon against Briscoe, and on March 7, 1868, caused the property described in it to be adjudicated to her for $20,000. On April 1, 1868, Briscoe was adjudged a bankrupt, and was duly discharged December 19, 1868. The petition states that duly certified copies of the proceedings in bankruptcy are annexed to it, but they are not found in the record. On November 13, 1868, the defendant Mary E. Castleman instituted suit against her husband, Briscoe, for a separation of property, and a judgment was entered on the same day decreeing her to be separate in property from her husband, and dissolving the community of acquets and gains between them. On December 12, 1868, Mrs. Mildred Gregory, for the consideration of $4,517.82 in cash, and $25,000 in notes, conveyed to Mary E. Castleman the Mound plantation, together with all the growing crops, stock, material, and other property acquired by her at the sheriff's sale. Briscoe at his death left no other property. The female plaintiff was married in July, 1858, and the other plaintiff, the sole issue of such marriage, was born in 1859. James Andrews died about January, 1860, and by the terms of the constitution of mandate, the female plaintiff then having one child, the said sum of $10,000 was to remain invested in the hands of Briscoe, the interest to continue to be paid to her; but she had not received from Briscoe any part of the principal, nor any part of the stipulated interest since about April, 1867, and there is now due to the plaintiffs, to be paid from the property and effects of Briscoe, wherever found, the sum of $10,000, with arrears of interest at the rate of $700 per year since January 1, 1861, less the sum of about $700 paid about April, 1867, with legal interest on the stipulated annual payments of $700, from January 1 of each year, from the year 1862, inclusive. The conveyance of the property by Mrs. Mildred Gregory to Mary E. Castleman, December 12, 1868, was a fraudulent simulation, contrived and intended by Briscoe to defraud the plaintiffs, and to defeat the execution of the trust, and Mary E. Castleman received the title of the

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property for the use of Briscoe, who paid the consideration expressed therefor, and continued in possession of the property. He procured Mrs. Mildred Gregory, a preferred creditor, to provoke the seizure and sale of all his property, and accept the adjudication thereof, and he then made a surrender in bankruptcy, and was adjudicated a bankrupt and discharged. He then procured Mary E. Castleman to obtain the judgment of separation, and Mrs. Mildred Gregory to convey the entire property to her. Briscoe, up to the time of his death, retained the exclusive control of the property and of the business relating to it, and himself paid to Mrs. Gregory the said sum of $4,517.82, from the proceeds of the crops of 1868. The plaintiffs very recently, for the first time, have been informed that Briscoe procured the conveyance of the property to Mary E. Castleman with the intent to defraud them and prevent the enforcement of the trust. The prayer of the petition is that the defendants pay to the plaintiffs the sum of $10,000, with seven percent per annum interest from January 1, 1861, less the sum of $700 paid about April 1, 1867, with five percent per annum interest on each annual payment of $700, from January 1 of each year, from the year 1862, inclusive; that the conveyance of December 12, 1868, be declared simulated and fraudulent, and the property be declared to be the property of the estate of Briscoe, and subject to the payment of his debts and obligations, and for general relief.

Mary E. Castleman, by the name of Mary E. Briscoe, filed exceptions to the petition; also an answer, which set up as a defense the discharge of Briscoe in bankruptcy, with other defenses. Mrs. Goldman and her husband answered the petition, but did not set up the discharge in bankruptcy.

In November, 1882, the plaintiffs filed an amendment to their original petition, adding further allegations intended to show that the transfer of the property from Briscoe to his wife was void; that at least one undivided half of it belonged to his succession, subject to a settlement of the community between him and his wife, and that the pretended judgment of separation was a nullity.

Mary E. Briscoe (now Mary E. Castleman) answered the

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amended petition and reaffirmed all the averments of her original answer. She also pleaded a prescription of five years. Mrs. Goldman and her husband, for answer to the amended petition, adopted all the allegations of their original answer, but did not plead the discharge in bankruptcy. Mrs. Clinton and her husband and Mrs. Chamberlain and her husband answered the petition and amended petition, but did not set up the discharge in bankruptcy.

The case was tried by the district court, which entered a judgment in favor of Mary E. Briscoe and adjudged a recovery in favor of the plaintiffs against the heirs of Briscoe, for $700 annually from January 1, 1862, with five percent interest, as claimed, and costs, restricting the judgment as to those sums to the property and effects of the succession of Briscoe, wherever found, reserving the right to his heirs to renounce or accept the succession, with the benefit of inventory thereafter, and rejecting the demand of the plaintiffs for $10,000, set out in the petition, as premature in respect to the heirs of Briscoe.

The plaintiffs appealed from this judgment to the Supreme Court of Louisiana. The opinion of that court was given May 19, 1884, by Mr. Justice Manning, and is reported in 37 La.Ann. 138. It considered the question whether the obligation assumed by Briscoe was fiduciary, within the meaning of section 33 of the Bankruptcy Act of March 2, 1867, c. 176, 14 Stat. 533, which is the statute applicable to the present case, and reads as follows:

"That no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act, but the debt may be proved, and the dividend thereon shall be a payment on account of said debt, and no discharge granted under this act shall release, discharge, or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, endorser, surety, or otherwise."

The court arrived at the conclusion that the instrument signed by Andrews created a trust; that the debt of Briscoe to the plaintiffs was a debt created by him while acting in a fiduciary character within the meaning of

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section 33, and that his discharge in bankruptcy did not affect his liability for the obligation which he assumed.

On the same day, the court entered a judgment reversing the judgment of the district court in these particulars:

"That, instead of rejecting the plaintiffs' demand, the same is maintained, and the sales and conveyances by which Mildred Gregory received title to the Mound plantation and its appurtenances from the sheriff, and by which she afterwards conveyed title to Mary E. Briscoe, are annulled, cancelled, and set aside, and the property thus conveyed is declared to belong to the succession of William J. Briscoe, and to be liable to plaintiffs herein for the satisfaction of this judgment;"

that the plaintiffs recover of the succession of Briscoe $700, with five percent interest thereon from January 1, 1862, and the same sum with the same interest from January 1 of each succeeding year until paid, and the further sum of $10,000, and costs of suit, and that in other respects the judgment be affirmed. Five days afterwards, the heirs of Briscoe applied for a rehearing, which was granted, and the case was argued orally in November, 1884.

On the 16th of March, 1885, the court filed an opinion, delivered by Mr. Justice Fenner, reported in 37 La.Ann. 148, and concurred in by Mr. Justice Manning in a separate opinion, 37 La.Ann. 154. The court held, in regard to the discharge in bankruptcy, that the decision of this Court in Hennequin v. Clews, 111 U. S. 676, made since the original opinion and judgment, had altered its conclusions as to the effect of such discharge. It also cited the cases of Chapman v. Forsyth, 2 How. 202; Neal v. Clark, 95 U. S. 704, and Wolf v. Stix, 99 U. S. 1, as showing that its former conclusion was erroneous, and held that the debt of Briscoe was not created by him while acting in a fiduciary character. The views it announced were as follows:

"Andrews delivered to Briscoe $10,000, for which Briscoe obligated himself to pay seven percent interest annually. This interest was to be paid to Annie M. Andrews during her life or that of Briscoe, with the discretion, however, of withholding it from her in case of her improper deportment. But the obligation to pay the interest was nevertheless absolute

Page 138 U. S. 373

and unconditional, and if he judged Annie M. Andrews unworthy to receive it, it would have remained as a debt due to the ultimate beneficiary of the capital. This is apparent from the absence of any indication of a purpose to let Briscoe have the use of the money without interest and from the incongruity of construing otherwise the discretion confided to him of judging of her worthiness to receive it, for if, by deciding against the propriety of her conduct, he could absolve himself from the obligation of paying the interest at all, it would create an antagonism between his duty and his interest which could find no support in a rational interpretation of the writing. Therefore, we say, he was absolutely and unconditionally bound to pay interest on the money as long as he held it. This unquestionably implied the right to use the money, and to use it as his own, for no authority is given to make particular investments of it for account of the beneficiary, and such investments would have been at his own exclusive risk, and if unfortunate, however prudently made, they would have furnished him no excuse for nonpayment of either principal or interest. It imposed the further obligation of returning the $10,000 -- together, as we have shown, with any unpaid interest -- to the beneficiary named, or to Briscoe, or his heirs or assigns, in certain definite contingencies named and not necessary here to detail. Such is the plain import of the provisions of the so-called 'trust.' It said that the trust reposed in Briscoe was a trust simply in his 'punctuality' and 'integrity,' the same trust which lies at the base of every agency, and of every loan or other credit; that the fact that the trust was expressed in the instrument added nothing to its nature, force, or effect, and that if the word 'trust' had not been used, it would, nevertheless, have been implied in identical measure and strength."

On the same day, the court entered a judgment revoking and setting aside its former judgment and amending the judgment of the district court so as to condemn the succession of Briscoe to pay to the plaintiffs the sum of $700, with five percent interest from January 1, 1872, and the same sum with like interest for each succeeding year, and the further sum of

Page 138 U. S. 374

$10,000, and costs of suit, and affirming the judgment in all other respects, including the limitations on the moneyed judgment, the plaintiffs to pay the costs of the appeal.

The plaintiffs have sued out a writ of error from this Court, and have assigned as errors that the Supreme Court of Louisiana erred in deciding (1) that Mrs. Briscoe could plead the discharge in bankruptcy of her husband, and (2) that the obligation of Briscoe was affected by his discharge in bankruptcy.

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