Volume 35 — South Carolina Equity Reports

1867. David Epstin and Philip Epstin were tenants-in common of certain real estate, situated in the city of Charleston, described in the pleadings. By divers mesne conveyances tbe title of David Epstin in said real estate was transferred to Myer Stern. On tbe 10th of August, 1866, Myer Stern filed bis bill for partition against Philip Epstin. The commissioners in partition recommended a sale of the premises.

BEFORE LESESNE, OH., AT CHARLESTON, NOVEMBER, 1867. As the questions in this case arose upon the pleadings it is deemed proper to report the bill and demurrer in full. Bill. Humbly complaining, showeth unto your Honors, R. C. Barkley, of the district and State aforesaid, that his brother, James B. Barkley, departed this life on or about the-day of January, 1864, intestate, unmarried, and without issue, leaving surving him his brothers, John Barkley, David Barkley, William 0.

BEFORE LESESNE, CH., AT CHARLESTON, FEBRUARY, 1867. This was a bill for partition and settlement of the estate, real and personal, of which William J. Dennis, deceased, the testator in the cause, had died seized and possessed. The testator’s will bore date September 19th, 1853.

BEFORE LESESNE, CH., AT CHARLESTON, NOVEMBER, 1867. This was a bill for foreclosure of a mortgage.

BEFORE JOHNSON, OH., AT CHARLESTON, OCTOBER, 18G7. This case will be understood from tbe statements of tbe Circuit decree, and tbe opinion of the Court of Appeals.

<p>Contract of Sale — Vendor and Purchaser — Dower—Delay—• Auctioneer — Agent—Confederate Treasury Notes — Alteration.</p> <p>A., being an officer in the Confederate army on service out of the State, by his agent, 0., offered for sale at auction, for cash, in Charleston, on the 9th November, 1864, A.’s house and lot in that city, and it was hid off by B. for $71,500. On the 21st November A. executed a conveyance of the house and Jot, and sent it to 0., who, on the 27th December, 1864, received payment in Confederate treasury notes, and delivered B. the conveyance. A. became a prisoner of war on the 20th December, 1864, and remained a prisoner until May, 1865. On bill filed to set aside the sale, held that A. was not entitled to relief in equity.</p> <p>If there was no contract to sell binding upon the purchaser, because no proper entry in writing had been made, that did not invalidate the executed contract afterwards made between the parties.</p> <p>There was no renunciation by A.’s wife of her right of dower, and O. had agreed to retain $20,0t0 of the purchase-money until dower should he renounced: Held, that this arrangement did not invalidate the sale. B. had the right to insist on indemnity, and that agreed on was not unreasonable.</p> <p>The delay from 9th November to 27th December, was caused by B. taking time to have the title investigated, followed by C.’s absence:</p> <p>Held, that the delay was not unreasonable.</p> <p>Held, that C. was A.’s agent to receive the purchase-money.</p> <p>Held, that the contract being executed was not void because the consideration was paid in Confederate treasury notes.</p> <p>17ords which should properly have been inserted in a blank in the conveyance, were inserted after the conveyance left A.’s hands, and before it was delivered to B.: Held, that this did not invalidate the deed in equity.</p> <p>Tlie ordinance of September, 1865, which permits a party to show the true value and real character of the consideration, does not apply where the proceeding is to set aside an executed contract.</p>

<p>Practice— Infant — Absent Defendant.</p> <p>An infant defendant who is absent from the State, cannot be made a ■ party by publication of notice under the Act of 1866.</p>

<p> Will-Power. </p> <p>Testatrix devised and bequeathed the sum ot $7,500, some real estate, and certain slaves to Y. in trust, to pay the income to P. for life, with limitations over, and declared that it should be lawful for the trustee, with the consent in writing of P., “to dispose of.the whole or any part of the said real estate and other property, and to substitute other property, real or personal, in the stead thereofHeld, that the power had relation only to the real estate and slaves, ancl not to the pecuniary legacy of $7,500, and therefore, that as to the latter, Y. could receive and invest the same without the consent in writing of P.</p>

BEFORE CARROLL, OH., AT WILLIAMSBURG, MARCH, 1867. The decree of his Honor, the Chancellor, is as follows: Carroll, Ch. On the 10th of October, 1822, Martin Staggers executed his last will and testament, and within thirteen days afterwards died, leaving the same of force.

<p>Administration — Intestates’ Estates — Advancement—Accouni of Administrator — Investment—Confederate Bonds.</p> <p>Grandchildren, whose father died in the lifetime of his father, represent their father in the distribution of the grandfather’s estate, and must account for ail advancements which the father would have been liable to account for if he had survived.</p> <p>In reference to advancements, the rights and liabilities of distributees are fixed at the deatli of the intestate; and no subsequent loss of tire property, as by emancipation, can affect those rights and liabilities.</p> <p>Semble, that an administrator is not chargeable with the sale-bill merely because he so charged himself in his returns to the ordinary. The error can be corrected when he accounts in equity; and the proper mode of making up the accounts is to charge him from time to time as he makes the collections on the securities taken at the sale! Investments in Confederate bonds made in 1863, if otherwise proper, must be allowed.</p> <p>A. rvas administrator of the estates of J., R., and W., and as administrator of R. and W. was entitled in equal moieties to the estate of J. In March, 1863, having a large sum of money of the estate of J , he made investments in funds which afterwards became worthless, and credited himself as administrator of W., with four thousand dollars as an investment for that estate. On taking his accounts, it appeared that W.’s estate was .not entitled, at that time, to so large a sum from J.’s estate: Held, that the account must be taken by crediting A., in the first instance, with the whole investment as for J.’s estate, and then carrying to W.’s estate only so much as it was entitled to at the time.</p>

<p>Payment — Master in Equity — Confederate Treasury Notes.</p> <p>Decree, on creditor’s bill, made January, 1859, directed the Master to sell the testator’s estate for one-third cash, and the residue on a credit of one, two, and three years, secured by bond and mortgage— the debts to be paid out of the proceeds, and “the residue, subject to the trust of the testator’s will, to abide the future order of the Court.” The Master made the sales, and took from the purchaser of a plantation his bond for a large sum of money with mortgage. In January and March, 1864, the purchaser paid the bond to the Master in Confederate treasury notes, a currency which at that time had greatly depreciated but which was the only currency in the country. The Court concluded from the evidence that the payment was made and received in good faith: — Held, that neither the purchaser nor the Master was liable to the beneficial owners of the bond.</p>

BEFORE CARROLL, CH., AT CHAMBERS, JUNE, 1867. This was a motion at Chambers, to dissolve an injunction which had been granted by the Commissioner in February, 1867. In October, 1861, Ann E. Wrigbt, one of the defendant’s, recovered a judgment in the Court of Common Pleas for York district, against William Berry, for $1,061.88 and costs, and fi. fa. was issued on tbe judgment and levied by tbe sheriff) on a tract of one hundred and eigbty-eight acres of land.

<p>Practice — Partition—Marshalling assets.</p> <p>Where real estate of a decedent is sought to be partitioned, under a bill for partition only, the Court may, upon statements, made by petition in the cause, or in the answer of a defendant, that there are unsatisfied claims of creditors of the decedent, or others, to which the estate should be subjected, make all necessary orders, as under a creditor’s bill, for the protection of such claims.</p>

BEFORE CARROLL, OH., AT MARION, FEBRUARY, 1867. On the intermarriage of George M. Eairlee with Margaret G. Shaffer,'the parties executed a settlement of the intended wife’s estate — she being the party of the first part, and he the party of the second part.

<p>Scaling — Evidence— Confederate Money.</p> <p>Promissory note for $1,000, dated 30tli March, 1864, and payable “at the end of the war without interest.” Held that, under the ordinance of I860, it was competent to prove by parol, that the note was given for $1,000 in Confederate money, and that it was agreed that it should be paid at the end of the war in whatever money Was then current.</p> <p>Held, further, that the payee was entitled only to the value of the Confederate money at the time of the loan, hut that interest should he added from that time and not merely from the end of the war.</p>

The Reporter has not been furnished with a brief in this case, and can therefore make no statement except that which is contained in the opinion of the Court of Appeals.

BEFORE CARROLL, OH., AT MARION, FEBRUARY, 1867. The decree of his Honor, the Chancellor, is as follows: Carroll, Ch. In the consideration of this case some degree of embarrassment has been produced by the state of the pleadings. It is assumed by the bill, and apparently conceded by the answer of Jordan and wife, that an executor cannot be constituted but bjr express appointment of the testator.

BEFOB® LESESNE, OH., AT ABBEVILLE, JUNE, 1867. The facts of the case are sufficiently stated in the decree of his Honor the Chancellor, which is as followst Lesesne, Ch. In a cause of J. Wardlaw Perrin, Administrator of Thomas M. Mitchell vs. Alexander Hunter, Executor of Thomas Finley, there being in the executor’s hands a sum of $2,359.12, to which the next of kin of the testator were entitled, this Court made an order at June Term, 1859, for the said next of kin to come…

BEFORE LESESNE, OH., AT CHARLESTON, FEBRUARY, 1867. This case came before the Court on exceptions to the Master’s report, which is as follows: This case was referred to me, by consent, “ to take the testimony and report upon the facts and the questions arising thereon, with leave to report any special matter.” James Smith Colburn made his will on the 20th of February, 1856, and thereby, after bequeathing certain inconsiderable portions of his estate, gave all his interest in…

BEFORE LESESNE, OH.; AT CHAMBERS, MAY, 1868. Held: “that unless these lands had been disposed of in due course of administration, being general and not specific legacies, they were unquestionably liable for the testator’s debts before personalty specifically bequeathed.” The attention of the Court does not appear to have been drawn to the point now under discussion, and no appeal was…

BEFORE JOHNSON, OH., AT ORANGEBURG, JANUARY, 1867. The decree of his Honor, the Chancellor, is as follows: Johnson, Ch. On the 8th of January, 1827, George Bowman executed a deed (a) by which he conveyed the greater part of bis estate to his children, and by which he conveyed to his sons, David Bowman and John W. Bowman, during their natural lives, a tract of land containing sixteen hundred and twenty-four acres, which he had purchased from Samuel Funches, and another tract…

<p>Dower — Renunciation of Dower.</p> <p>A wife cannot make a valid renunciation of lier right of dower to one who is in possession of the husband’s land, without title, but with his consent, and under expectation of a conveyance from him, according to the provisions of his will already executed, and who afterwards acquires title under the will.</p>

<p>Trustee — Investment— Oonfederate Bonds.</p> <p>By a decree made in 1859, a trustee was ordered to invest certain moneys in slaves, if in his judgment “ said investment can be made on advantageous terms, and that, until said investment be made, he do pay the annual interest accruing on said trust-fund to his cestui que trustThe trustee made no investment in slaves, but retained the trust-fund in his own hands (paying the interest for several years to his cestui que trust) until 1863, when he invested it in Confederate seven per cent, bonds, having first, on his own petition, and without notice to liis cestui que trust, obtained an order for leave to make the investment: Held, that the trustee was not justified in making the investment in Confederate bonds, and he was ordered to account for the fund to his cestui que trust.</p> <p>Where a trustee is left to the exercise of his own discretion in making an investment, what a prudent man would do in the management of his own affairs, is the measure by which his liability is to be determined, but where the particular mode in which the investment is to be made is prescribed, he must adopt that mode, and no other.</p> <p>The Act of 1861, authorizing trustees to invest in Confederate securities, did not apply where the property or securities, in which the investment was to be made, had been prescribed by the Court.</p> <p>An order made on trustee’s ex parte petition, and without notice to the cestui que trust, will not justify the former in departing from the terms of a previous decree, by which both were bound, directing a particular mode of investment.</p>

<p>Guardian — Account—Interest—Evidence—Commissions.</p> <p>"Where a guardian charged himself in his annual return with a gross amount received “ in notes,” his estate after his death was held properly chargeable with the amount as so much cash received, and with interest thereon from the end of the year, his executor not being able to show how much, if any, of the amount was interest due on the notes.</p> <p>As a general rule, a guardian should be charged interest on'casli received only from the end of the year on the balance then in hand, and even where, in an exceptional case, he is charged interest before the end of the year, in the absence of proof that interest had, in fact, been made, some reasonable time for making an investment should be allowed, and no interest charged during that time.</p> <p>A guardian received $1,147.47 on 33d February : there being no need to retain any part of this sum in hand, held that he was chargeable with interest from the 1st June of the same year.</p> <p>Where a guardian delivered money to A., declaring at the time that it belonged to his ward, and requesting A. to purchase with it Confederate bonds as an investment for his ward, and further stating, at the same time, that he had previously made an investment for his ward in Confederate bonds, which his son had sold by mistake, and that the money now produced was the proceeds of that sale, held that so much of the declarations as stated that the money belonged to the ward, and the guardian’s object in making the purchase, was admissible, as part of the res gestee, for the purpose of showing that the guardian was entitled to credit for the investment, but that so much as related to the past alleged transactions was inadmissible.</p> <p>Under the Act of 1859 the estate of a guardian is entitled to commissions on his executor’s paying to the ward a balance which remained in the guardian’s hands at his death.</p>

BEFOBE JOHNSON, OH., AT EDGEFIELD, JUNE , 1866. The decree of his Honor, the Chancellor, is as follows: Johnson, Ch. On the 4th day of December, 1861, William L. Parks and Eelix G. Parks, under a power conferred upon them by the will of their late father, Bichard Parks, sold at public sale, two tracts of land.