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WEST V. SMITH, 49 U. S. 402 (1850)

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U.S. Supreme Court

West v. Smith, 49 U.S. 8 How. 402 402 (1850)

West v. Smith

49 U.S. (8 How.) 402


Where a bill was filed in the Circuit Court of the United States for the County of Alexandria by a legatee against the executor and residuary devisee, praying for the sale of the real estate in order to pay legacies, the personal estate being exhausted, it was not necessary to make a special devisee of land in Virginia, who resided in Virginia, a party defendant.

The orphans' court had power to allow a commission to the executor for paying over a specific legacy and a right to extend this commission to ten percent

Under the laws of Virginia, the executor had a right to refrain from pleading the statute of limitations when sued, and to pay a judgment thus obtained against him. The judgment, at all events, must stand good until reversed.

Where the executor paid legacies to persons who had occupied property which, it was alleged, belonged to the deceased, and the occupiers claimed to hold it in consequence of an uninterrupted possession of twenty years, the justice of their claim could not be tried in a collateral manner by objecting to this item of the executor's account on the ground that he should have set up the claim for rent in setoff to the legacy.

This was a bill filed in the circuit court by Ellen Smith, then Ellen Mandeville, one of the legatees of Joseph Mandeville, deceased, whose will was before this Court for construction at January term, 1844. The case is reported in 43 U. S. 2 How. 560. It will be seen by reference to that case that John West became a party to the proceedings upon the ground of being the residuary legatee, and, as the Court then held, residuary devisee also.

Ellen Mandeville, who intermarried with Joseph Smith pending the suit, was a legatee under that will for $3,000. One of the clauses of the will was this:

"If my personal property should not cover the entire amount of legacies I have or may give, my executors will dispose of so much of my real estate as will fully pay them."

Mandeville, the testator, died in July, 1837.

In May, 1839, Ellen Mandeville filed her bill in the circuit court (to which suit her husband, Smith, afterwards became a party), charging the making and publication of the will, the bequest to herself and others of certain legacies, which in default of personal assets were chargeable upon the real estate, the death of the testator, and the deficiency of personal assets, chanroblesvirtualawlibrary

Page 49 U. S. 403

and praying a sale of lands for the satisfaction of her legacy. To this bill all the other pecuniary legatees, the residuary devisee, West, and the executor of Mandeville were made defendants.

It is not necessary to trace the progress of the suit through its successive stages. It was at last referred to a master in chancery, who reported sundry matters of account, to some of which exceptions were taken by the defendant, West. The court, however, overruled these exceptions and proceeded to decree a sale of so much of the real estate as might be necessary to pay the legacies. From this decree West appealed, and the case now came before this Court upon the exceptions to the master's report. Only four of these exceptions were insisted on in the argument, viz., the second, third, seventh, and eighth.

They were as follows. The first exception is inserted for the purpose of explaining the second.

"1. For that said commissioner has improperly allowed William C. Gardner, deceased, a credit in his account as executor of Joseph Mandeville, deceased, the sum of eight hundred and forty-two dollars and ninety cents, as having been paid to Sarah A. Hill 'a specific legacy of slaves, furniture &c., as appraised,' which said property was properly subject, at the time of its delivery to the said legatee, Sarah A. Hill to the payment of the debt of Joseph Mandeville, deceased."

"2. For that the said commissioner has improperly allowed the said William C. Gardner, deceased, as a credit in his said executorial account on the estate of Joseph Mandeville, deceased, the sum of eighty-four dollars and twenty-nine cents as a commission on the said $842.90, mentioned in the first foregoing exception, which said sum was not so due to said Gardner."

"3. For that the said commissioner has improperly allowed the said Gardner, as a credit in his said executorial account, the sum of three hundred and sixteen dollars and thirty-seven cents and a further credit in said account of nine hundred and twenty dollars and twenty-six cents (920.26) as having been paid by said Gardner on account of a judgment in favor of Samuel Bartle against said Gardner, as executor of Joseph Mandeville, deceased, the items or most of them forming the account of said Bartle against said Mandeville's estate, on which said judgment is predicated, being unsustained by legal proof, and barred by the statute of limitations."

"7. For that the said commissioner has improperly reported the sum of fifteen hundred dollars, with the several sums of two hundred and twenty-five dollars and four hundred and fifty dollars interest thereon, after allowing a credit of one hundred

Page 49 U. S. 404

and fifty dollars, as a legacy due to Mary Mandeville, under the will of Joseph Mandeville, deceased; the said legacy being subject to a further credit of two hundred and twenty-five dollars, for the use and occupation of a portion of the real estate of Joseph Mandeville deceased."

"8. For that the said commissioner has improperly reported the sum of fifteen hundred dollars, with seven hundred and thirty-five dollars, the interest due thereon, as a legacy to Julia Mandeville, under the will of Joseph Mandeville, deceased, when the same should have been credited with the sum of two hundred and twenty-five dollars for the use and occupation of a portion of the real estate of Joseph Mandeville, deceased. "

Page 49 U. S. 409

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