Volume 7 — South Carolina Equity Reports

Bill by the complainants, the guardians of several minor children, against the defendants, the administrators of their father’s estate. It appeared from the commissioner’s report, that in 1818 and 1819 the defendants received of their intestate’s estate upwards of $3,000, belonging to the minor children.

This case was heard upon the defendant’s exceptions to the report of the commissioner. The bill stated that Huldah Goodman, on the 1st of January, 1818, by her written obligation bearing date the day and year aforesaid, stood bound to one William Baker, or his certain attorney, in the sum of 8266 13, payable on or before the first of January, 1819, with interest from the date.

The bill was filed in this case to obtain relief against a judgment at law, obtained in the name of Mr. Higgins, the commissioner, on a bond, given by the late John Taylor for the purchase of a tract of land sold for the purpose of partition by commissioner Higgins, in which Taylor, Sarah Stribling (afterwards Mitchell), and A. Stribling were jointly and equally interested. Sarah Stribling married C. Mitchell, one of the defendants, whilst they were both under age.

The bill in this case was filed to obtain the construction of the court, on the will of Joseph Hightower, who died in June, 1811. The will contained several devises and bequests of real and personal property to the wife of the testator, and to his children, with various limitations and remainders. Some parts of the property had been sold to third persons, who claimed as bona Jide purchasers. Several of the legatees were dead.

William Hall died intestate in 1812, leaving a widow, Elizabeth, and four children. The widow administered upon his estate, and afterwards intermarried with James Day, who thereby became administrator in right of his wife, and also became possessed of the personal estate.

<p>The security which the court will grant the remainder-man, of personal property, against the acts of the tenant for life. Where there is no reasonable ground for apprehension on the part of a remainder-man of the tenant for life of personal property, the court will only order the tenant for the to give a schedule of the property. In ease, however, of danger, or just apprehensions of it. the court will order security to be given to the remainder-man. Cases of this sort are left to the discretion of the chancellor, and his order will not be disturbed, unless improperly exercised.</p>

The bill in this case stated that Mrs. Thomas, the wife of complainant, was the only child of Caleb Gilbert, deceased, and the only legitimate child of Mrs. Gilbert, also deceased. That the defendant married an illegitimate child of Mrs. Gilbert.

<p>The surely to a guardianship bond is liable as well for moneys received before the execution of the bond for the estate, as for moneys afterwards raised and not accounted for. Whatever may be found due on the breach of a bond for money, or performance of covenants (as in the case of a guardianship bond,) ranks as a bond debt. Where minors were invited by their guardian to reside with him gratuitously, they shall not afterwards be made to pay board. But the guardian will be allowed for clothing and other necessaries furnished them. A guardian is not authorized to break in upon the capital of his ward for his maintenance, except under peculiar circumstances. And if the guardian advances beyond the income, as a general rule he will not be allowed interest on a balance due for maintenance. A guardian is entitled to be reimbursed his expenses in prosecuting a claim of his ward’s, or in selling a tract of land for him. This court reluctantly interferes with decrees on facts. If a person standing in a fiduciary situation suiler his transactions to be involved in obscurity, which with proper care he could have prevented, the lowest estimate will be put upon his remuneration, should lie be entitled to any.</p>

<p>T^qnity will not entertain jurisdiction of a ease involving- titles to land, where a discovery of titles is not sought, or some other ground of equity relied on. An heir cannot go into equity to demand an account oí' rents and profits, unless some impediment exists to his recovery at law. On questions of fact, the decree of the chancellor is supported as a verdict at law, and will not be set aside, unless manifestly contrary to the weight of evidence.</p>

<p>This court requires rather stronger grounds for reversing a decree on facts than for setting aside a verdict at law; but acts upon the same principle. An executor is entitled to be refunded costs and counsel fee, paid in defending a case against the estate.</p>

<p>An executor, administrator or other trustee, who bona fide advances money for the estate, is entitled to bo refunded out of the estate.</p>

<p>The act which requires the slaves on the plantation of a tenant for life who dies after the 1st of March, of any year, to remain thereon to finish the crop, does not ¿rive hire to the remainder-man, but confers their services for the remainder of the year to the estase of the deceased tenant.</p>

This cause was fully heard upon the merits in the summer of 1826, and one of the defendants, C. Clifton, who had answered, died in the autumn, before a decree was pronounced. Chancellor DeSaussure, who heard the cause, decreed that the suit had abated as to C. Clifton, and that no further proceedings could be had in the cause until the suit was revived as to the defendant who died. The complainants now moved to reverse this decree.

<p>Property in hotchpot how to be valued. What are advancements. Decree of the chancellor on iacts is generally conclusive. The answer oi'the defendant, who was called upon to slate what advancements had been made to him, that a certain note had been given in settlement of all advances is conclusive, unless rebutted by two witnesses, or one witness and circumstances; or unless the circumstances of the case shewed that higher evidence might have been given of the facts. What are advancements to a child, often depends upon the circumstances of the gift. An executor (under the circumstances) charged with interest from the time of receiving the fund to the commencement of the suit, and for all sums since received with the interest thereon received. That which was undertaken gratuitously shall not be converted into a demand. By hotchpot is meant, that each child is to draw at the death of the parent an equal proportion. But that part of the estate which has been advanced must be estimated at what it is worth at the death, relation being had to its situation at the time of the gift. The increased value arising from improvement on lands, or issue of slaves, is excluded by the statute of South Carolina. At the death of the ancestor the rights of the parties are fixed, and the improved value alter that period goes in the proportion of the capital, or original fund.</p>

<p>Where a bill was filed against an executor for a debt due the complainant by the estate for which the executor had given his own note, it was held, the bill was well brought, and that it was unnecessary to mate the legatees parties, no distribution having taken place, or being alleged] and an order of reference to inquire into the amounts received by the legatees set aside, not being within the allegations of the bill, and the legatees not being parties. An executor having given his own note for a debt due by the estate, does not exempt the estate from liability, and he may be sued in equity, as executor for it.</p>

<p>Parol evidence, when admitted to correct a mistake in a deed. Parol evidence sometimes admitted, on the part of a defendant, to shew a mistake in a deed to prevent the specific execution of it, but never on the part of the complainant to set up a different deed from that which has been executed. The declaration of a magistrate who was dead, that a mistake in a deed was made by him, is inadmissible, being hearsay. The court will not admit parol evidence to show that a renunciation of dower before a magistrate was intended as a release of inheritance. The court will not readily correct mistakes after a lapse of time.</p>

<p>Jurisdiction of equity in the partition of lands. The law of intestates vests only an inchoate right in the heir to land, before partition. Under the act of 1791 a dis-tributee of lands may go either into equity or law for partition. If an adverse title is set up, an issue at law may be directed.</p> <p>Quaere. Whether tenants in common and joint tenants should be allowed to go into equity for partition, there being no obstacles to their proceeding at law for want of title deeds, &c.</p> <p>The act of 1791, of distributions, vests no immediate right. It is inchoate until the lands are partitioned or the goods distributed ; and an execution against one of the distributees has no lien on liis undivided share until assigned to him in partition. Proceedings in partition are conclusive upon the parties and their privies.</p>

The bill stated that Samuel Shelton, being indebted to Robert Chandler in the sum of $200, pledged to him a negro fellow named Hall, who was to work for him until the debt should be paid. Chandler fell in debt to Robert Mobley, and, with the assent of Shelton, transferred his right in Hall to Mobley.

This cause came on upon the report of the commissioner, and exceptions thereto. The bill was filed by the complainant to recover a sum of money, about two hundred dollars, which he had been obliged to pay as surety for the defendant Wade, on his purchase of a horse.

John Mayo, by his last will and testament, dated the 10th of April, 1S16, loaned to his wife Elizabeth, during her widowhood, the whole of his estate, both real and personal; and after her widowhood directed the same to be equally divided between his six children, to wit: Mourning Floycl, the wife of- Floyd, Sarah Mayo, Richardson Mayo, Thompson Mayo, John Mayo, and Nancy Mayo. John Mayo, the eldest, died on the 17th of November, 1817.

The bill stated that William Smith, Samuel Hicks, and Lucy, his wife, Owen Hall, and Judith, his wife, were the complainants.

In this case a tract of land was ordered to be sold by a decretal order of the court of equity. The sale took place by the commissioner, «and it was knocked off to Nathan Sims, one of the defendants entitled to a share of the estate, as the highest bidder, at the price of §3,000.

Ann Clarke by her will gave several negroes to Ann Coulietle for life, and at her death, without issue living, then over to William Bradford an infant. Ann Coulietle married the defendant Felder, and died without having had children.

<p>Words of perpetuity in a devise of lands not necessary to convey a fee. “ I will and bequeath to my son H. one half of my plantation whereon I now live,” held to convey a fee. A charge on lands devised, without words of perpetuity, will give a fee. The legislature having declared by an act, what the law in future should be on a point much controverted in the courts, the court adopted the rule laid down in the act, and decided the cause pending in the court by that rule. A declaratory act is an act to remove some doubt which previously existed with regard to the law.</p>

The defendant, John H. Nettles, as executor of Zachariah Nettles, obtained a judgment ag-ainst the complainant for §243 20 cents, besides costs. This was a bill to enjoin the proceedings on that judgment, on the ground that Zachariah Nettles, the testator, was indebted to Margaret Campbell, (now deceased,) the administration of whose estate was committed to the complainant, in a greater amount.

This bill was filed for the purpose, first, of correcting an error made in a settlement which had taken place between the complainant and three of the legatees of complainants’ testator, Elijah Watson and wife, Daniel J. Beacham and wife, and Henry Paisley and wife; and secondly, to compel all the legatees to come to a settlement and account with him, against three of whom, William G. Wright, James Wright, and Tobias Cook and wife, he had demands to the full amount of their…

This bill stated that on the death of William Dendy in 1816 or 1817, administration of his estate was granted to the defendants Patsey Dendy and James Young, and that they entered into bond to the ordinary with the defendants Gallanus Winn and Andrew- Winn, as sureties for the faithful discharge of their duties.

Jacob Myers, late of Lexington district, South Carolina, made and executed his last will and testament on the 16th of February, 1804. He was possessed of a considerable real and personal estate, and died soon after making his will : and the defendant, David Myers, his only child, on the 6th of August ensuing, qualified as executor. The questions in this case arose upon the construction of this will.

This case arose under the last will and testament of the Jate Mr. Ainsley Hall, of Columbia, South Carolina, duly executed on the 3d of May, 1822, which he left in full force when lie… Held: that should not then prevent the widow from taking. And it decides, in effect, that if the particular devisee could have taken, she would have been excluded. This was the view of the master of the rolls, as explained in Waring v. Ward, 5 Yes. 670. It was upon the ground of intention.

<p>Where the defendant had come into possession of funds bona fide under an administration which was many years after revoked, the court would not compel the defendant to account for interest further back than four years before the filing of the bill. A parly who lies by and suffers another to occupy and enjoy property or funds as his own under an apparent and bona fide good title which he might have brought into discussion much earlier, will be restricted in his demaud for an account to the time of his demand, or to four years before the filing of his bill. The rule for calculating interest on accounts, against persons iu a fiduciary situation, is to allow interest on the annual balances, but not to be compounded.</p>

<p>"Where personal properly is given by wilt to the first taker in words -which would give an estate tail or a fee conditional at common law in lands, and is then limited over by way of executory devise to a person in esse, the limitation over is too remote and is void, and the first legatee takes an unlimited estate. Property in South Carolina cannot be limited over beyond lives in being and twenty-one years and nine months. A fee conditional may be created of an annuity. The rule that a limitation over after words which would create an estate tail in the first takers is void, is applicable, though the property be of a perishable nature, as negroes, &c. Neither the limitation to one tn esse, nor the nature of the property so limited by will, can render it valid where it is given after an estate to the first taker, and the heirs of his body.</p>

<p>A mortgaged his bouse and lot to 13, to pay a debt of $1,500. On foreclosure and sale by the commissioner, C at the request of A bid offthe premises at $4,500, paid the $1,500, was discharged from the balance by A, and took title, with an understanding between A and C that upon C’s repaying the $1,500, the property should be re-conveyed to A. The judgment creditors of A tiled their bill against C to compel him to pay into the hands of the commissioner the balance of the bid of $4,500, to be applied to the judgments. Held that the judgment creditors had no right to enforce the bid? and the property decreed to be sold, first to repay C and the balance to be applied to the creditors of A according to their legal priorities. The answer replying to the allegation that the defendant was indebted to A the balance of the bid, stating all the circumstances of the understanding between A and C and denying that C owed A any thing, was held conclusive, until rebutted by evidence on the part of the complainants. Where the answer denies any allegation in. the bill, the complainant must prove his allegation.</p>

Paul Hamilton, of Pentonvilie, in the Parish of Clerkenwell, in the kingdom of Great Britain, made his last will and testament on the 30th of May, 1797, and shortly after died. The testator had been an inhabitant of South Carolina prior to the American revolution, but left this State about the time of the declaration of independence, and resided, from that time until his death, in England.

Henry Rhodes administered on the estate of Jacob Rhodes who died intestate, and Josiah Pendarvis one of the complainants, and Jacob Durr the intestate of the other complainant were sureties to his administration bond. Henry Rhodes committed a devastavit on the estate of Jacob Rhodes, and the complainants his sureties were sued at law, and judgment obtained against them for the deficiency in that administration.

<p>When a tenant for life of slaves dies after the first of March, the slaves employed on the plantation to make the crop, must so continue until the crop is made, which becomes assets in the hands of the executor of the tenant for life, without payment of hire to the remainder-man. The rig'ht of dower is a charge upon the lands and not upon the general funds of the estate oi"the husband; and where the commissioners assessed the widow’s dower at $500, which the administrator paid, the item was not allowed in his account. A note or bond made for the purpose of being sent into the market, and without any consideration, is usurious, even in the hands of an innocent holder, if discounted in the first instance at an usurious rate of interest: but strict proof of the fact is required as to an innocent holder. In absence of proof the bond implies a consideration, and the mere fact that it was sent into market by the drawer will not raise the presumption of usury, when it was in the ¡rover of the creditor raising the objection to have made a witness of the obligee, who had assigned the bond. Moneys received by an executor or trustee on bonds, and not paid over, cannot be charged by his newt ai qne trust against his estate, upon the death of the trustee, as a bond debt. A broach of trust only forms a simple contract debt.</p>

<p>Champerty, what. If one concerts with another standing in a fiduciary relation, to commit a fraud on his cestui que trust, he will be answerable at least to the extent that he has been been benefitted by it. Champerty does not apply toa bona, fide purchaser of any right, in possession or action.</p>

<p>The testator first gave pecuniary legacies to he paid out of his estate in three years after his death, without interest. lie then divides his estate, bonds, notes. &c. between a sister and a brother’s (William) children ; to each bequest the condition was attached, “ after paying their proportion of my debts.” He then gives the residue of his estate to his sister. By a codicil he leaves twenty-five negroes to the children of another brother, Josias, his “ executor,” to employ the labor of the said slaves during their minority, and apply the profits of the same to their benefit. Held that the pecuniary legacies were a charge upon the whole estate, except as to the negroes o-iven to the children of Josias. Also held, that his sister and the children of his brother William were chargeable with the legacies and debts in proportion to the shares of the estate which they received. The word “proportion” indicates that each of the two great devisees were to pay according to the amount devised to them. Legacy charged on the whole estate, except that part given to Josias’s children. The case referred to ascertain if there was any residuary estate to pay the pecuniary legacies j and whether the executors had retained the estate in their hands longer than necessary to pay the legacies.</p>

The defendant filed her hill against John Magrant, the surviving executor of Benjamin Screven, Jun. and against William Lester and Mary E. Inglesby administrator and administratrix of John Screven and Joseph S. Bossard executor of John Bossard, the said John Scre-ven and John Bossard having also been executors of the said Benjamin Screven, Jun. The object of this bill was to have an account and settlement of the accounts of Samuel Smith the intestate with the estate of…

<p>Before a creditor can resort to equity to obtain relief out of the assets of his debtor, he must shew that he has obtained judgment at law, and that execution cannot be made at law, and that it cannot be enforced without the aid of equity. If a creditor wants relief touching- the personal assets of his debtor, he must show that he has taken out execution at law, and pursued it to every available extent against the property before he can resort to equity. It is not enough that he lias judgment and execution, he must show that his execution cannot be enforced without the aid of equity. Where there is no administrator or executor, suit can neither be maintained at law nor equity, against an estate. If there be no executor or administrator, the creditor may lake out administration. If a party make himself liable as executor of his own wrong, he is as much liable at law as in equity. If the defendants are not liable as executors, they are only liable to the executor or administrator, who alone can sue. Where the bill is not filed for the specific property, equity will not retain jurisdiction for a discovery of the issue of slaves, &c. It is not sufficient to show that the subject matter is within the jurisdiction, the complainant must show his equitable right to bring the defendant into that court.</p> <p>Quaere. If the statute will run before administration'?</p>

This was a bill to account. Upon the defendant’s answers coming in, the court ordered a reference of the accounts before the commissioner. On account of indisposition, the complainant could not attend the reference, and a report was made which was very dissatisfactory to him. On a statement of these facts the chancellor sent the report back, but ordered the commissioner to examine the accounts forthwith, and to report to the court.

<p>The husband is not liable for a debt of his wife’s, not recovered before her death, though he received an estate by her. The marital rights of a husband cannot attach on the property of a deceased wife, where there are other next of kin, until partition is made. A cestui que trust has no lien on the trusteed estate for a breach of trust.</p>

Elizabeth Butler, the defendants’ testator, on the 20th of May, 1765, executed her bond to Robert Brisbane for £3,000, payable on the 1st day of January, 1766, with William Elliott, and James Parsons complainant’s testator, as her sureties. Mrs. Butler the same day gave James Parsons a bond of indemnity against the risk of his suretyship, reciting- that William Elliott was also a surety. On the 21st of November, 1775, Elizabeth Butler made her will and soon after died.

The question in this case arose out of a clause in the last will.and testament of Mrs. Susannah J. Platt, which was in the following words : “I give, devise, and bequeath unto ray daughter, Susannah Swinton, all the remainder and residue of my estate whatsoever, and wheresoever the same may be found, to her use during life, and after her death to be equally divided among the survivors of her children, to each of them share and share alike, as they shall attain the age of…

This bill was filed by the complainants against the defendants, to recover funds to which they alleged they were entitled, as heirs and distributees of Dr. Adam Petsch. The defence set up was that the fund had been paid over to one Brown, the complainants’ guardian.

In June, 1806, George Chisolm sold to William S. Hasell, a wharf in Charleston for the sum of 848,000. The purchase money, except §22,000 was paid up.

<p>Where a bill was filed against an administrator to account, and a decree pronounced on his liability, and a reference of accounts ordered, and, pending the reference, his administration is revoked and granted to another, it does not abate the bill as to the first administrator, who must still account: and to save a multiplicity of suits the second administrator may be joined, and a decree made between them. In all cases of agencies or trusts a bill to account may be maintained, although they are no longer in the character in which they acted. So a suit against an executrix does not abate by her marriage, but the husband may be made a party and the suit continued. Decree may be made between co-defendants.</p>

<p>Where an estate is properly sold on a credit and bonds taken by the executor, he is entitled to charge commissions on the bonds, as on so much money received. An executor is entitled to commissions on all sums received and paid, whether in bonds, notes, or cash.</p>