Volume 13 — South Carolina Equity Reports

<p>A purchase by an executor (who is also an heir and devisee) of the lands of a testator, and a conveyance to himself by the Commissioner in Equity, fgr his own benefit, and for that of the other heirs and devisees, with their privity and assent, vests in them the legal title, and they will be bound by the purchase.</p> <p>If he so act without their privity or assent, or where they are incapable of assenting, by reason of their minority, he will be personally responsible for the purchase money, though he bid off the land to prevent a sacrifice in the sale.</p> <p>The same rule applies to a guardian, acting for his ward. If he bid off property to prevent a sacrifice, he will be bound by his purchase, though he sustain a loss by the subsequent depreciation in its value.</p> <p>The authority of a guardian ad litem, terminates with the judgment or decree in the case.</p>

Tried before Ms Honor, Chancellor JOHNSTON, at YorJc. The bill of the complainant set forth that Joshua Gilmore departed this life intéstate, leaving as his heirs at law the complainant Sarah Gilmore, his wife, and their son Francis Gilmore. That the said.Francis Gilmore died shortly after the said Joshua, under the age of twenty-one years, and intestate, leaving no distri-butee hut his mother, the complainant, who had administered upon his estate.

Tried, before his Honor Chancellor JOHNS TON, at Marion. This was an appeal from a part of a decree made by Chancellor Johnston in 1S35, and which may be found reported in 2nd Hill, Ch. 434. That part now appealed from, was as follows: “The second question is, whether the complainants have aright to set aside the purchases of certain slaves made by Francis Johnson, the executor-, at his own sale.

Before Ms Honor Chancellor JOHNSTON, at Newberry, July Term, 1837. The facts of this case, so far as they are material to a proper understanding of that part of it which relates to the liability of the defendant Thos.

<p>An executor who voluntarily pays a, legacy to one who is by the will required to give a bond to return it, on the happening of a certain, event, cannot afterwards compel such legatee to. re-pay the money, though he refuse to give the bond as required by the will.</p>

Before Ms Honor Chancellor JOHNS TON, at Spartanburgh, June Term, 1835. The complainant, as executor of John White, filed his bill, praying a discovery of certain negroes and other property belonging to the deceased, which he supposed had come into the possession of the defendant; also praying a special injunction restraining the defendant from removing the property out of the jurisdiction.

Before Ms Honor Chancellor JOHNSTON, at Edgefield, Jane Term, 1835. These were cases of partition. The lands were sold under the order of the Court, and the funds were in the hands of the Commissioner.

<p>A clause in a will directing that the father of two of the legatees should have the use of their property for their education and support until they married or became of age, does not give a beneficiary interest to the father.</p> <p>A child who after attaining majority remains with his father and aids him in his business, with the view of a joint ownership in the property accumulated, cannot after the death of the latter, raise an account for his services, whore he has accepted a provision under the will of his father, which is more than equivalent to the value of such services.</p> <p>An executor is guilty of a fraudulent violation of trust, if he wilfully does any thing to obstruct intelligence of the contents of the will from reaching the legatees. ,</p>

<p>A gift ofpersonal property was made by deedr to four of the donor’s children separately, and by separate clauses, with a limitation over to the survivors upon the event of either one or more of them dying without a lawful issue; — held that such limitation was valid.</p> <p>The limitation to a survivor only, implies an intent to confer a personal benefit, and restricts the generalty of the phrase “die without issue.”</p> <p>Interests in personalty, amounting to executory devises, may be directly conveyed by deed without the intervention of a trustee.</p>

<p>1a equity, as well as at law, the lo3s or destruction of a note must he proved by dis interested witnesses, in order to entitle the claimant to relief thereon.</p> <p>'The statute of limitations cannot run between principal and agent until demand; •and an accounting between them cannot be considered a demand of monies collected by the agent previously and kept out of view by him at the time of such accounting.</p> <p>Nor can a creditor prevent the bar of the statute by endorsing upon his demand, a payment of a very considerable part ofit.</p> <p>The statute will run against a note’given by an agent for the funds received by him for his principal; and though the talcing of the note was no discharge of the trust, yet where the latter has neglected to avail himself ofhis legal remedy, the Court will not unravel the transactions between them merely for the purpose of evading the statute.</p> <p>An agent who has stipulated to accouut semi-annually, is liable to pay interest on all sums received .and not accounted for, at the stipulated time. Where he holds back the funds and mixes them with his own, the Court might charge him with interest from the time he received them.</p> <p>For sums received before such stipulation to account, the principal is entitled to interest from the accounting by the agent next succeeding the times of receiving those sums respectively.</p> <p>Commissions cannot be allowed in any case where they are not stipulated for, or allowed by statute.</p> <p>An account stated, or note given is prima facie evidence of a settlement of accounts between the parties; so also, the declaration of a party that only a small balance is due, is a strong circumstance against him when claiming a large amount; but all these circumstances are open to explanation and are not conclusive.</p> <p>The obligor of a bond is a competent witness to prove payment by him to the agent of the obligee, in a proceeding by the latter, to recover the amount of such payment irom the agent. ,</p> <p>Whenever the survivor is insolvent, a partnership creditor may proceed in equity against the estate of a deceased partner.</p> <p>Such creditor has the right to resort either to the partnership property, or to the separate property of the parties; but as a party having two funds, he may be compelled by the separate creditors of one of the partners, to exhaust the partnership property, before he proceeds against that of an individual partner.</p>

<p>In this State, as well as in England, a feoffment with livery of seisin, by the tenant for life of the legal estate, will bar all contingent remainders; and the rule is not modified by the circumstance that the remainder-man is an infant.</p> <p>A feoffment so made, together with a release of the right of entry and action, by the person next entitled in remainder or reversion, was held to be such a title as a purchaser was bound at law to accept.</p> <p>This Court, however, will not lend its aid in barring the remainder-men, by compelling a purchaser to aceept such title, but will leave the party seeking such aid to his remedy at law-</p>

<p>The rule which substitutes the value of seven years purchase, or one-sixth of the fee simple in lieu of dower, was intended to operate prospectively only, and not to divest ascertained rights at the time of the assessment — as where the widow had survived, and the dower had been withheld for a longer time.</p> <p>Where the land was aliened during the coverture, the widow is entitled to the annual interest of one-third of the purchase money, from the death of her husband up to the time of the assessment; and to complete the measure of her remuneration, it ought to be continued during her life. When it is practicable, nothing short of this will satisfy the law; it is only in those cases where it is impracticable, that a sum in gross ought to be substituted.</p> <p>The Court has the power of correcting the assessment of the commissioners.</p>

<p>The wife has no right to charge or dispose of her separate estate, even with the consent of her husband and trustee,'unless it is otherwise provided by the terms of the settlement.</p> <p>Nor will the Court on the joint application of husband and wife, direct her trustee to place her separate property in the hands of the husband.</p> <p>Where the bequest to the wife was part of the residue of the testatrix’s estate “consisting of furniture in her room, wearing apparel, stock, monies, or dioses in action, to her sole and separate use, and not subject to the debts, contracts or control of her present, or any future husband,” and that the wife’s receipt alone should be considered as a sufficient discharge to the executors for the same, — the Court refused to order the stock or monies to be paid to her husband, on the application of husband and wife, though he offered to give adequate security for the forthcoming of the capital, at such period, and on such conditions as might be considered most in accordance with the will of the testatrix.</p>

Before Ms Honor Chancellor DESAUSSURE, at Charleston, January 1837.

Before Ids Honor Chancellor JOHNSON, at Charleston, 1836. The foundation of this suit was a common penal bond conditioned for the payment of money, entered into by the defendant, Mrs. Simons, before her intermarriage with defendant, B. P. Simons, and her deceased father, John Lloyd, to the complainant’s testator, and it was objected that the complainant was not entitled to relief in equity, because he had an ample remedy at law.

Befwe his Honor Chancellor HARPER, at Charleston, June Term, 1837. The material facts in this case are embodied in the following decree: • . Arnoldus Vanderhorst, by his will dated in 1810, devised to his three daughters, Harriet Hony, Maria Simmons and Jane Van-derhorst, certain lots and tenements in the city of Charleston, and also the residue of his estate.

Before his Honor Chancellor JOHNSTON, at Barnwell, January 1838. His Honor pronounced the following decree: This case is now before the Court, on an application of the commissioner for directions.

Before Ids Honor Chancellor HARPRR, at Charleston, June 2837.

Before Ms Honor Chancellor JOHNSTON, at Barnwell, January 1838.

Before Ms Honor Chancellor HARPER, at Charleston, June 1837. Held: that the will was confirmed by the codicil, and that the execution of the codicil was a re-publication of the will, so as to pass land intermediately acquired.

Before his Honor Chancellor JOHNSTON, at Coosawhatchie, February 1838. Berkley Ferguson, sheriff of Beaufort, then husband of the defendant’s testatrix, conveyed seven slaves, and among them three, named Bina, Betsey and Mira, to Mrs. Varlin, his mother-in-law, by deed, dated March 3d, 1810, upon a consideration expressed of $1,400. He was at the time, and continued till his death, insolVent.

On the 11th January, 1836, a hill was filed by John M'Donald and wife, v. Williams and Durant, administrators of Joseph Durant, deceased, for an account and partition of said intestate’s estate.

A bill had been filed in this case by the complainant’s testator, to set aside certain judgments obtained by the defendant. A bill of revivor was afterwards filed and supplemental matter added, claiming to set aside the sale of certain slaves. The Chancellor on the circuit refused relief, and directed that the parties should pay their own costs.