Volume 25 — South Carolina Equity Reports

Before JOHNSTON, Ch. at Bdgefield, June, 1851. JohNStoN, Cb. This bill, filed 22d April, 1850, is for an account and settlement of tbe estate of the late James Miller, who died intestate, 29tb March, 1847. He had been twice married, but both of his wives pre-deceased him — each of them leaving children.

<p>where the presumption of the satisfaction of a judgment is urged from the lapse of time merely, it is indispensable that the term of twenty years he complete: and eren where that is the case, the presumption is not irretratable, but is of such strength that it can be overcome by scarcely any evidence.</p> <p>Lapse of time, less than twenty years, and corroborating circumstances held sufficient to raise the presumption, that a decree in favor of parties, some of whom were resident in, and some without, the State, was satisfied so far as the parties in tbe State were interested: but not sufficient to raise the presumption of satisfaction as against the parties resident -without the State.</p>

<p>Before JOHNSTON, Oh. at Newberry, July, 1850.</p> <p>This case will be sufficiently understood from the opinion'Aeli-vered in the Court of Appeals.</p>

<p>Testator, intending “as for Ms worldly estate to dispose thereof,” devised and bequeathed as follows: — “ X lend to my wife, J. G-., during her natural life, the use of one half of my land” (describing it) “and five negroes” (naming.them): after other bequests, the will contained the following residuary clause, to wit: “It is my will, that at my decease all the property which X possess and have not before bequeathed, be sold on a credit of one and two years, and for my debts to be paid out of the debts which are duo me, and the money arising from the sales of my properly; and the balance to be put out at interest for the use and support of my children,” &c: — Held, (1) that the five negroes did not pass to the wife absolutely, but for life only; (2) that the reversion, after her death, did not pass under the residuary clause, but was intestate property.</p>

<p>Where legatees, -whose legacies -were of equal grade, had been paid in unequal proportions, and afterwards a fund, insufficient to pay all the balances, was recovered from the estate of a deceased executor who had committed waste,— held, that such fund should be applied in the first instance towards equalizing the legatees who had received less than the others, before any part should be applied to the legacies of those who had been more favored.</p> <p>Where a legacy to an executor is of equal grade with those of other legatees, and, because of a devastavit committed by a deceased co-executor, the assets are insufficient to pay all the legacies, he, the executor, is not entitled to retain his . whole legacy, but only his due proportion.</p> <p>Counsel fee allowed the executor out of the assets, and Wham vs. Love (Bice Eq. 51) approved.</p>

Before Wakdlaw, Cb. at Chester,- July, 1851. Held: enjoyed and disposed of as hereinbefore provided.” It appears that the trustee has in his hands notes, &e., to the amount of $240, and cash to the amount of $25, arising from the hire of said slaves. The petition is taken pro confesso against John Gr. Bishop, who left the State some years ago.

<p>Before JohNSTON, Ch. at Anderson,- June, 1851.</p> <p>This case will be sufficiently understood from the opinion delir livered in the Court of Appeals.</p>

<p>A decree determining a case upon its merits, but ordering a reference to ascertain the amount due, and not determining the mode in which satisfaction should be made of the amount when ascertained, may be appealed from when an appeal is taken from the decree on the report.</p> <p>Conveyance of property in trust, that husband and wife and his children should be supported and maintained out of the property during their natural lives, and, after the death of husband and wife, that the estate should be equally divided among the children : the husband, first, and the wife, after his death, contracted debts, personally, for rent, overseer’s wages, and necessaries supplied for the use of the family:—</p> <p>Held, that for these debts the creditors had no equity to make the trust estate, as such, liable.</p> <p>Held, further, that the creditors of the wife could not enforce their demands out of her individual interest, (1) because the bill was not framed with that aspect; and (2) because her interest could not be separated without breaking in upon the scheme of the trust, which required that the property should be kept together until the death of the survivor of the husband and wife.</p>

Before Wakdlaw, Oh., at Spartanburg, June, 1851. This case is instituted by plaintiff as administrator of the chattels and credits of Daniel Mullins, who died intestate, against the defendant, the widow of the intestate, for an account of rents and profits of tbe Mhllinax-mill tract of land and the Foster tract, to which the intestate had titles in his own pame, and of which, since his death, the widow has retained the possession, claiming them as purchased with trust funds…

Before HargaN, Ch. at Sumter, June, 1851. The bill in this case was filed April 15, 1851, and on April 21, subpoenas to answer were duly served on the defendants, who resided about thirty miles from the Court House. On June 2, the bill was taken pro confesso. On Tuesday, June 8, the sitting of the Court for Sumter commenced, and on that day the order pro confesso was set aside as to the defendant, W. H. B. Richardson, and he filed his answer.

Before Wardlaw, Ch. at YorJc, June, 1851. Wardlaw, CL This suit is brought by the legatees and representatives of legatees of J. D. O. K. Pettu's for an account and settlement of his estate. J. D. 0.

<p>It would, be replete with inconvenience to sanction a practice of hearing a cause piece-meal, or by detached parts. It is the duty of the plaintiff to be fully prepared at the hearing; and if from the death of a party and the want of time to'bring new parties before the Court, the cause cannotbe fully heard, leave will be given to postpone. J</p> <p>A having an execution against B’s testator, B'borrowed money, giving A as his surety, and paid the money to A on the execution: B died insolvent, and A, as his surety, was compelled to pay the money: — Held, that the execution of A against the testator was satisfied to the amount of the money borrowed by B and paid to A.</p>

Before Dargam, Oh. at Kershaw, June, 1851. DaRGAN, Ch. Joseph Cunningham being about to solemnize a marriage with complainant, Esther Cunningham, on the 20th day of July, 1841, entered into an ante-nuptial marriage contract with the said Esther Cunningham, (then Niles,) and William McWillie, the trustee of the said marriage settlement; by which the said Cunningham, in consideration of the intended marriage, did stipulate and agree, that in case the said intended marriage…

<p>The existence of a judgment and other proceedings in partition, in the Common Pleas, established on parol evidence.</p> <p>Quere: where, on proceedings in partition under the Act of 1791, land is allotted to one distributee, and he is required to pay another 'distributee a sum of money in lieu of his share of the land, does the judgment transfer the title, irrespective of the payment of the purchase money, and establish only a lien on the land, or is the title not vested until payment of the money ? (a).</p> <p>The presumption of payment -which arises from the lapse of twenty years, is not a presumption of law, but a strong presumption of fact, which shifts the burden of proof.</p> <p>In considering admissions, relied on to rebut the presumption of payment, the same principles are applicable which apply where admissions are relied on to take a case out of the statute of limitations.</p> <p>So long as the lapse of time is less than twenty years, any admissions which op-pugn the inference of payment drawn from it, go to the jury along with it, and all are weighed together according to their natural force: but when full twenty years have expired, an admission, that the payment has not in fact been made, cannot, of itself, destroy the effect of the presumption.</p> <p>In estimating the time sufficient to raise the presumption that a judgment has been paid, the period during which the plaintiff was under disability from infancy must be deducted: Semble (b)</p> <p>A judgment in partition vesting the land in W. A. on his paying C. A. a sum of money in lieu of her share, held, as against a purchaser of the land from W. A., not to be satisfied, although twenty-four years had elapsed since the judgment was rendered, — it appearing that C. A. was an infant, about two years old, when the judgment was rendered, and W. A. having admitted the non-payment of the money.</p> <p>In 1833, defendant purchased land on which plaintiff, then an infant, had a lien under a judgment in partition: in October, 1845, plaintiff arrived at age, and in September, 1850, filed her bill against defendant Held, that defendant was not protected by the statute of limitations.</p>

Before Dargan, Ch. at Union,■ June, 1850. Dargan, Ch. The tract of land on which Grlenn’s Spring is situated, originally belonged to John E. Glenn, complainant’s intestate. In 1837, a company was formed for the purchase of the land, and the erection of buildings and various other improvements at the Spring, with the view of establishing it as a watering place, and opening and keeping a hotel for the entertainment of visitors.

<p>A plaintiff in a judgment at law, seeking the aid of the Court of Equity, is not bound to show a fi. fa. issued on his judgment and returned nulla bona — a oa. sa. may be as well, if not better, adapted to show that the plaintiff could not have satisfaction by legal process, and that he needs the assistance of the Court of Equity.</p> <p>A plaintiff in a judgment at law having his debtor in custody under a ca. sa. may file a bill to have a previous conveyance by the debtor, and a previous judgment confessed by him, set aside for fraud.</p> <p>Every defence, such as fraud, &e., bearing upon the validity of a contract, is concluded by a judgment upon the contract — the creditors of the party defrauded have no right, (except where the fraud was perpetrated with an intent to affect creditors,) to question the validity of the contract, and the party defrauded is concluded by the judgment.</p> <p>A purchase made to enable a debtor to remove his property out of tho way of a coming judgment, is fraudulent.</p> <p>The assisting a debtor to remove his property from Florida to this State, and taking from him a confession of judgment here — the object being to defeat the lien of the judgment about to be obtained in Florida, and to obtain a preferable lien in this State, — is fraudulent.</p> <p>where a sale of negroes is set aside for actual fraud upon creditors, an expenditure made, such as paying a previous mortgage, for the purpose of forwarding the fraud, will not be reimbursed to the purchaser when the sale is set aside.</p> <p>Where a vendee, discovering a defect in his vendor’s title to part of the land, sues at law upon the contract and recovers judgment for, and collects the damages sustained, by reason of the defect, he thereby elects to treat the contract as valid, and cannot afterwards sustain a bill in equity to have it rescinded.</p>

<p>Uader tlie 7th. section of the ordinary’s Act of 1839, the ordinary is entitled “ to fire per cent oí the value -of the estate,” taken charge of hy him as derelict, only Trien he has performed the duties prescribed in that section. Where, instead of selling the whole estate, paying the creditors, and depositing the net balance in bank, he applied to the Court for instructions, and, by order of the Court, sold so much of the estate only aá was necessary to pay the debts;— held, that he was entitled to five per cent [of so much of the estate as he had sold and no more.</p> <p>Where the ordinary takes charge of, and administers the estate of a testator, under the Act of 1846, he is not entitled “ to five per cent of the value of the estate he can claim only the commissions of an executor'under the Act of 1789.</p>

<p>Testator bequeathed all the rest of Ms estate unto R. 1?. “ in trust for John, Thomas, Philip, Rebecca, Caroline and Susan Thome, persons of color, and their heirs, forever.” Testator died in 1824; and in 1848 this hill was filed by Rebecca, the black, mother of the legatees, John, Thomas, Philip, Caroline and Susan, who were the natural children of testator, against R. P., claiming that she was entitled to the legacy to the Rebecca, named in the will. Her claim was resisted in behalf of Rebecca, the brown, (daughter of Judy,) who was an infant at the date of the will, and whom the testator also claimed to be Ms natural child. Upon the evidence given, and principally upon her own acts recognizing the title of Rebecca, the brown, and her long acquiescence, held, that plaintiff was not entitled to the legacy.</p>

Before DuNKIN, Cb. at Charleston, June, 1850. The former branch of this canse is reported 4 Strob. Eq. 1. The canse came on upon exceptions to the master’s report, under the inquiry that was directed.

<p>Testatrix by tbe 9tb clause of ber will bequeathed to A. C. “ one thousand dollars to be placed at interest by my executors for ber use, and given to ber on ber marriage ; at ber death to be given to ber mother: ” after several pecuniary bequests she concluded tbe 12th clause of ber will as follows : “ All tbe</p> <p>above legacies must be paid out of tbe interest of my estate, or bonds, in succession as herein stated above.” A. C. having married, held, that she was entitled to interest on her legacy from one year after tbe death of testatrix.</p>

<p>Bequest to testator’s four sons “to them and their heirs forever; if either of my sons should die without issue, Ms part shall he equally divided between, the survivors:” G. was the last surviving son and he died without issue — W., another son, having died before him, leaving issue: Held, that G.’s estate was a vested fee, defeasible in the event that he died without issue, leaving one or more of his brothers surviving him, and, therefore, in the events wMch had happened, W. had no interest, under the will, in G.’s share, wMehMs administratrix;-could claim.</p>

Before Wardlaw, Ch., at Charleston, February, 1851. Wardlaw, Ch. Alexander Robert Chisolm, by his will, dated May 29, 1827, devised a plantation and negroes to his son, Alexander R. Chisolm, for life, and, upon his death, should he die leaving issue at the time of Ms death, to such issue as should attain the age of twenty-one years, or at the day of marriage, equally and absolutely, with survivorship among them; and should his son die leaving issue, as aforesaid, and also a…

Before DuNKiN, Ch., at Charleston, June, 1851. DuNKIN, Ch. The questions presented by the pleadings arise on the will of William Edings, deceased, and the codicil thereto. The former bears date 23d May, 1834, and the latter on the 27th March, 1836, and both were admitted to probate on the 11th April following. An extract of so much as is necessary is annexed to this decree.

Before DargaN, Ob. at Charleston, March, 1850. A petition was filed by Mrs; Greddes and a creditor of tbe late Mr. Greddes, setting forth an account of bis debts and assets, and praying a sale and distribution of tbe estate under tbe direction of tbe Court. On this petition, an order was granted for a sale, and Mr. Gray, one of the masters, was directed to take an account, and give notice to creditors.

Before Wardlaw, CL, at Yorlc, June, 1851. Wardlaav, Ob. The plaintiffs are some of the children and-sons-in-law of John Dennis, sen., and Mary his wife, and prosecute against the defendant, a son and principal legatee of said John Dennis, sen., a claim to reform, according to the supposed intention of the parties, a deed from John Chesor and Anna his wife, to the said Mary Dennis, a sister of the said Anna Chesor.

Before DargaN, Ch., at Barnwell, February, 1852. This was an appeal by the complainant, E. J. Higginbottom, from an order directing the costs to be paid out of funds of the estates of James Higginbottom and Aaron Grillett, respectively.

Before Waudlaw, Ch. at Fairfield, July, 1851. Wardlaw, Ch. The general object of this bill, is for relief to the plaintiff, from the effect of a receipt given by him for a decree of this Court in his favor as executor; when there was, in fact, no payment, and his acceptance of another security was under mistake.

Before Wardlaw, Cb., at Fairfield, July, 1851. Wardlaw, Cb. This bill is for an account and settlement of tbe estate of William Brice, senior. William Brice, sen., died in May, 1849, leaving seven children: Jane Douglass, Elizabeth Stevenson, James C. Brice, John Brice, William Brice, Robert Brice and Jennet Brice.

<p>Testator baring an only daughter and two grand-children, issue of his daughter, bequeathed property to his ‘ grand-children to be equally divided between them:’ after the death of testator three other grand-children, issue of his daughter, were born: when the two eldest grand-children, who alone were entitled to take under the will, arrived, at age, the executor paid each of them one-fifth of the legacy, and took from them written acquittances and discharges: this settlement was intended to be in full,- — all the parties, including the ordinary who stated the account, supposing in good faith that all the grand-children were entitled to share the legacy: near eight years afterwards the two eldest grand-children filed their bill to have the settlement opened, on the ground of mistake of law: — Bill dismissed.</p> <p>where executor and legatee honestly misconstrue the will, and have a settlement in full, based upon such misconstruction, the settlement will not be opened merely because of such misconstruction.</p> <p>Parties desirous of opening a settlement, on the ground of errors or mistakes, must make liaste in their application to the Court: long acquiescence amounts to a presumed ratification.</p>

<p>3. of Lancaster district, knowing that M. of Georgia was entitled to a distributive share of the estate of A., who died intestate in Lancaster district, went to Georgia, and there entered into a written contract with M., (whose lunacy, 'if he was a lunatic, was unknown to B.,) whereby M. agreed to give to B. one-half of his share in the estate, upon B’s. prosecuting the Claim, at his own expense, to a successful termination. B. returned to Lancaster, and there prosecuted the claim successfully. M. died, and, on bill filed, Ms heir^ impeached the contract between B. and M. on the grounds (1) of fraud, (2) that the consideration was excessive, and (3) of M’s. insanity. The Court overruled the two first grounds, ordered an issue at law upon the third, and held that, if the lunacy should be established, still B. would be entitled to just and reasonable compensation for his services.</p> <p>If one enters, in good faith, into a contract with a lunatic, without a knowledge of his lunacy, and, in pursuance of the contract, renders him important services, whereby he is greatly benefitted, though the contract be Void, the party-rendering the services is entitled to just and reasonable compensation.</p>

<p>Four obligors gave their joint and several single bill, and two of them, C. and B., were sued, separately, at law, by the obligee, and defended the actions on the ground of fraud and misrepresentation on the part of the obligee, but judgments were recovered against them: the four obligors then paid up the amount of the judgments, and the two who had not been sued at law, J. and D., assigned their interest in the matter' to C. and B.: C. and B. then filed their bill against tlie obligee, seeking relief on tbe same ground on ivbicb tbe actions at lav bad been defended, and, at tbe trial, used J. as a -witness: Held, tbat they were not entitled to relief, and tbeir bill was dismissed.</p>

Upon the question ordered to be re-argued, (see 3 Rich. Eq. 384) to wit, whether, as to tbe personal1 estate of tbe testator, Charles J. Brown, there was a valid limitation to tbe issue of bis daughter, Mrs. Play, as purchasers, this cause was again beard. contended, first, that tbe limitation over, to tbe “ nearest heirs of my body by my mother’s lineage” was not void for uncertainty; that it was manifest the testator intended to limit tbe estate over to bis next of kin in…

Before WaRduaw, Ch., at Fairfield, July, 1851. Plaintiffs, children of Josiah Foster and Pinckey, his wife, •which Pinckey was the only child of Z. Hall, filed this bill, April, 1849, claiming certain slaves as enuring to them under the operation of the will of their said grand-father. The will bore date February 18, 1826, and was admitted to probate, February 20, 1830.

<p>Where a party is not ready to go on with a reference, a motion to continue should he made before the commissioner, and it is irregular to pass him by and make the motion before the Court. ¿</p> <p>A guardian by failing to make returns does not forfeit his commissions.</p> <p>Though there are cases in which trustees have been charged with compound interest, yet the course of the Court is to discourage the compounding of interest.</p> <p>Buies by which guardians and other trustees should be charged with or allowed interest on their accounts, stated.</p> <p>Where a trustee admits his accountability, he must file with his answer a stated account showing the balance which he admits to be due. Where this is done (and the answer is incomplete and subject to exception, if it is not done) the plaintiff is entitled to a short order that the sum admitted be paid to him.</p>

<p>Feme covert piu'chases negroes for valuable consideration, talcing conveyance to herself “ for her sole and separate use.” The conveyance needs no registration, and creditors of husband impeaching it must show that the negroes were purchased with the funds of husband.</p> <p>. A mother, in consideration of love and affection for her daughter C., a feme covert, and for “the purpose of contributing to the support and maintenance of said daughter during the term of her natural life, and for the better support, maintenance and education of the children of said daughter, born or hereafter to be horn,” conveyed certain slaves to the said C., “in trust for the use, benefit and behoof of the said C. for and during the term of her natural life, and from and immediately after her death, in trust for the use, benefit and behoof of all the children of the said C., equally to be divided between them ; in case, however, if any of the children of the said C. shall have died in her life time leaving issue, living at the time of her death, such issue shall talco the same share of said slaves, which the deceased parent would have been entitled to if living: ” Held</p> <p>1st. That C. took a life estate in the slaves, with remainder to her children.</p> <p>2d. That the marital rights of her husband attached thereon, and, therefore, that the life estate was liable to be sold under fi. fas. against him.</p> <p>3d. That the children were entitled to an order, that the purchasers at sheriff’s sale should give security for the forthcoming of the slaves.</p>

Defore Wardlaw, Ch. at Fairfield, July, 1851. William Adger¿ jun. died intestate in 1826, and bis father, William Adger, sen., became his administrator. Held: that a trustee was not answerable for having applied the trust property, even to what turned out to be a losing adventure, if without fraud or negligence.

<p>Demise of property, real and personal, to C. B. in fee, “but if she should die ■without leading issue Irving at her death” then over to W. Y. in fee: W. V. died in the life time of q. B., and she then died without issue: Held, that W. Y’s. estate in expectancy, both in the real and personal property, passed at his death to his heirs then existing, and that they and their representatives were entitled to distribution of the property when the expectancy fell in ; and that the heirs of W. Y. existing at the time the expectancy fell in were not exclusively entitled.</p> <p>Under the Act of distributions of this State, actual seisin is not necessary to enable • one, having a present title to an estate, to become the stock or root of inheritance: contingent remainders and executory devises are, by that Act, distributable among the heirs existing at the death of the person entitled to the estate in expectancy, and not among his heirs existing when the expectancy falls in.</p>

Upon tbe questions referred by tbe Equity Court of Appeals to this Court, (see 4 Strob. Eq. 87, 57-8,) tbe cause was now beard. on tbe first question said, the intention of tbe testator, if it be consistent with law, should always prevail. That tbe testator, here, intended to give James Boone Perry an estate for life only, is clear ; and if be is held to take a fee conditional, it must be by implication — an implication which defeats tbe manifest intention.

Before JOHNSTON,-Ch., at Darlington, February, 1851. This case arose out of tbe will of tbe late Mrs. Hannab Sanders, of Darlington. The testatrix died tbe 13th of April, 1847.

By an Act of 1813 of tbe Legislature of South Carolina, (9 Stat. 471,) Henry Sbultz and Lewis Cooper were authorized to build a toll bridge over the Savannah river, extending from this State to the town of Augusta, in the State of Georgia, and the same was vested in them, their heirs and assigns, for twenty-one years.

Before DaRGAN, Cb. at Charleston, February, 1850. Held: that the remainders to the children were vested remainders in each child when he or she was born, subject, however, to be divested by the parents exercising the power of appointment. Maundrell vs. Maundrell, 7 Yes. 567 ; Smith vs. Lord Qamelford, 2 Ves. jun. 698; Eearne Con. Rem. 226, 233; Sug.