TAYLOR V. BENHAM, 46 U. S. 233 (1847)

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U.S. Supreme Court

Taylor v. Benham, 46 U.S. 5 How. 233 233 (1847)

Taylor v. Benham

46 U.S. (5 How.) 233


By the laws of Alabama, an administrator de bonis non with the will annexed is liable for assets in the hands of a former executor.

Where an executor has settled what appears to be a final account, it must be a very strong case of fraud proved in such a settlement, or of clear accident or mistake, to make it just to reopen and revise the account after the lapse of twenty years and the death of the parties concerned.

Where a person who held land as trustee directed by his will that the whole of the property that he may die seized and possessed of or may be in any wise belonging to him should be sold, the executors had power to sell the land held in trust as well as that belonging to the testator in his own right.

The trustee, by his will, having appointed residuary legatees, must be considered as devising the trust as well as the lands to these residuary legatees, who thus became themselves trustees for the original cestui que trust.

The power in the executors to sell was a power coupled with a trust. It might also be considered as a power coupled with an interest. The distinction between these powers adverted to.

In order to avoid an escheat and carry out the wishes of the testator, a court of equity will, if necessary, consider land as money where a testator who is a trustee has directed the land to be sold, and will direct the proceeds to be given to the cestui que trust.

Whether the executor had a power to sell coupled with a trust or a power coupled with an interest, the residuary legatees took by devise and not by descent, although they were supposed to be also the cestui que trusts.

If, therefore, they were aliens, the land did not escheat on the death of the trustee, because land taken by devise does not escheat until office found, although land cast by descent does.

The testator, who held the lands as trustee, having died in South Carolina, the executor took out letters testamentary in that state, sold the lands which were in Kentucky, and then removed his residence to Alabama. He can be sued in Alabama for the proceeds of the lands, because his transactions in reference to them were not necessarily connected with the settlement of the estate under his letters testamentary.

Having sold the lands and received the consideration, he must be responsible to the residuary legatees.

An objection that only one executor sold (there having originally been four) cannot be sustained. Where a power is coupled with a trust, it is only necessary to show such a case as may in a court of equity make an agent or trustee liable to those for whom he acts. As much strictness is not required as there would be if the power to sell were a naked one, and not coupled with an interest or trust.

A power to sell coupled either with an interest or trust survives to the surviving executor. So also, if all the trustees or executors in such a case decline to act except one.

When a sale is made under a will, the omission to record the will does not vitiate the sale unless recording is made necessary by a local statute.

The land being in fact sold by the executor, claiming a right to do so under the will, and the purchase money being received by him, he is responsible to the cestui que trusts for the money thus received. The reception of an additional sum as purchase money by them, with a reservation of the right to sue the executor, is not an avoidance of the first sale by the executor.

But the executor is not responsible for more money than he received, with interest, unless in case of very supine negligence or willful default. A claim for damages would also be subject to the operation of the statute of limitations. chanrobles.com-red

Page 46 U. S. 234

If the executor himself did not set up a claim as an offset for his personal expenses, his representative cannot do it under the circumstances of this case.

The cestui que trusts residing in a foreign country, the statute of limitations did not begin to run until a demand was made upon the executor for the money. His retaining it during that time is no evidence that he did not intend to account for it.

Although the bill made no distinction between the two characters in which the executor acted -- namely as executor proper and as executor having a power coupled with a trust -- yet, as no objection was taken in the court below upon this ground, this Court does not think that an amendment is imperatively necessary. The material facts are alleged upon which the claim rests.

These cases were twice before partially brought to the notice of the court, and are reported in 42 U. S. 1 How. 282, and 43 U. S. 2 How. 395.

The bill was originally filed by Samuel Taylor, the father of William, George, Eliza, and Elspet, together with his nephews, William Rainey, Alexander Rainey, and his niece, Elizabeth Rainey, against George M. Savage, executor of Samuel Savage, deceased. The object of the bill was to hold the estate of Samuel Savage responsible for certain moneys which it was alleged he had received during his lifetime in his capacity of executor of William F. Taylor, a citizen of the State of South Carolina, and also for his alleged neglect of lands in Kentucky, by which they were lost.

The record was very voluminous, as a great mass of evidence was filed in the court below, all of which was brought up to this Court.

The claim divided itself into two distinct branches, one arising from transactions in South Carolina, where William F. Taylor, the testator, died and where letters testamentary where taken out by Samuel Savage, and the other from transactions in the State of Kentucky. Each of these branches will be stated separately.

William F. Taylor resided in South Carolina, where he had been naturalized in 1796. Savage lived with him for some time, and afterwards continued to reside in the vicinity. In 1811, Taylor died, leaving a will which was admitted to probate on 11 August, 1811.

At the time of his death, the brother and sister of the testator -- namely, Samuel Taylor and Mary Taylor -- were both alive, married and had issue. Their children ultimately became parties to this suit, and their names are in the title of the case. Samuel Taylor had two sons, namely William and George, and two daughters, namely Eliza, who intermarried with William Primrose, and Elspet, who intermarried with George Porter. Mary Taylor intermarried with William Rainey, and her issue were two sons and a daughter, namely, William, Alexander, and Elizabeth.

The first section of William F. Taylor's will was as follows, namely: chanrobles.com-red

Page 46 U. S. 235

"First. I do hereby order, will, and direct, that [on] the first day of January first after my decease or as near that day as can conveniently be, that the whole of the property that I may die seized and possessed of or may in any wise belong to me be sold on the following terms and conditions, that is to say, all the personal property on a credit of twelve months from the day of sale, purchasers giving notes of hand or bonds, with security to the satisfaction of my executors, and all landed or real property belonging or in any wise appertaining to me shall be sold on a credit of one, two, and three years, by equal installments, purchasers to give bond, bearing interest from the date, with securities to the satisfaction of my executors, and moreover a mortgage on the premises."

The second section gave a legacy to his negro woman Sylvia.

The third and fourth sections also bequeathed legacies to particular individuals.

The fifth and sixth sections were as follows:

"Fifthly. I do hereby will, order, give, grant and devise all the remainder or residue of my estate which shall be remaining after paying the before-mentioned legacies to my dearly beloved brother, Samuel Taylor, of the Parish of Drumblait and Shire of Aberdeen, in Scotland, and to my beloved sister, Mary Taylor, of the same place, share and share alike, provided they shall both be alive at the time of my decease, and have issue, which issue, after their respective deaths, shall share the same equally; but if either the said Samuel Taylor or said Mary Taylor shall die without issue, then the survivor, or, if both shall be dead, the issue of the said Samuel Taylor or Mary Taylor, whichsoever shall leave the same, shall be entitled to the whole of the said remainder or residue of my said estate, share and share alike."

"And sixthly and lastly, I do hereby nominate, constitute, and appoint my friends, Samuel Savage, Esquire, of the District of Abbeville and State of South Carolina, Patrick McDowell, of the City of Savannah and State of Georgia, merchant, Duncan Matheson and William Ross, of the City of Augusta and State of Georgia, merchants, executors of this my last will and testament, hereby revoking and making void all former wills and testaments, at any time by me heretofore made, and do declare this to be my last will and testament."

The executors all qualified as such. No bond was given, as neither the laws of the state nor the practice of the court required a bond from an executor under a will. This narrative will treat,

1st. Of the transactions in South Carolina where all the executors acted.

2d. Of the Kentucky lands, where Savage acted alone.

1. With respect to what was done in South Carolina.

On 30 September, 1811, an inventory and appraisement were made of the goods and chattels of the deceased. But as the chanrobles.com-red

Page 46 U. S. 236

amount was not added up, it cannot properly be stated, and on 18 January, 1812, an additional inventory and appraisement were made, which latter amounted to $808.12. A list of notes and accounts due to the estate was also handed in by Savage, as one of the executors. Ross also filed a list of notes, bonds, and open accounts belonging to the estate in his possession.

In January, 1812, the four executors made sales of the real and personal property amounting to $24,011.46, and returned a list thereof to the Court of Ordinary. The law at that time did not require an account of sales to be recorded. After this, McDowell did not appear, by the record, to have any further participation in the settlement of the estate.

Savage, Matheson, and Ross, each filed separate accounts. Those of Matheson and Ross will be disposed of before taking up those of Savage.

Matheson filed but one account, namely, on 30 March, 1813, by which a balance was due to the executor of $281.76.

Ross filed three accounts, namely:

1813, March 30. Balance due the estate, $4,034.80

1814, April 4. Balance due the estate, 6,093.63

1815, April 4. Balance due the estate 6,299.77

Ross does not appear to have filed any further accounts, and what became of this balance the record does not show. It does not appear to have been paid over to Savage, but the complainants, in their bill, disavowed all claim against Ross.

Savage filed ten accounts, one in each year till 1818, April 22.

The last-mentioned account was as follows:

DR. The Estate of Wm. F. Taylor, deceased, with Samuel CR.

Savage, Executor


March 11, V To cash paid ordinary . . . . . . $ 1.75

V To cash paid Butler & Brooks. . . 23.62 1/2

V To cash paid Butler & Hammond . . 16.00

14, V To cash paid James Day. . . . . . 2.50

To expenses to Edgefield court-

house and to Augusta. . . . . . 25.25

22, V To cash paid M. Mims, clerk &c.

for cost. . . . . . . . . . . . . 17.18 3/4

V To cash paid the clerk. . . . . . 1.56 1/4


87.87 1/2

My commissions on $10,393.42 1/2,

at 2 1/2. . . . . . . . . . . . 259.82

My commissions on 87.87 1/2 . . . 2.18


$349.87 1/2



Page 46 U. S. 237

March 22, V Cash paid the ordinary. . . . . . 1.18 3/4

Expenses at Edgefield court-house 5.00

April 22, V Cash paid Adam Hutchinson, attorney

for the parties interested. . . 10,037.36 1/4


$ 10,043.55


March 14, By balance due the estate, as per

last return . . . . . . . . . . . 9,966.97 1/2

By cash received of adm'r L.

Hammond . . . . . . . . . . . . . 180.00

By cash received of adm'r Wm. Hall,

it being the balance of his bond

and interest, after deducting

$200 under a compromise of a

land case . . . . . . . . . . . . 246.45


$10,393.42 1/2

Deduct amount from the other side -349.87 1/2




Amount balanced $10,043.55

"The account current, received in the ordinary's office on the oath of Samuel Savage, executor, 22 April, 1818, and find vouchers for every item marked with the letter V on the left-hand margin."


At the time of filing this account, there was filed also the following receipt:

"Received of Samuel Savage, executor of the estate of Wm. F. Taylor, deceased, the sum of ten thousand and thirty-seven dollars and thirty-six and one quarter cents, in full of his actings and doings on the said estate up to this date, as per his account current this day rendered to the ordinary of Edgefield District. I say, received by me this twenty-second of April, anno. Domini 1818."



"MARY RAINEY, his wife"


"Their Attorney"

These accounts of Savage have been stated together in order not to make a break in the narrative. It will be necessary now to go back in the order of time.

On 14 February, 1815, Savage applied, by petition, to one of the judges of the Court of Equity in South Carolina for authority to loan out the funds of the estate, praying the court to make such order as might seem equitable and just. Whereupon the chanrobles.com-red

Page 46 U. S. 238

court passed an order that the petitioner should lend out the money on a credit of twelve months, on such good security as he might approve of.

At some time in the year 1815, Samuel Taylor came to the United States.

On 9 February, 1816, he executed the following paper:

"GEORGIA, City of Augusta: "

"Whereas Samuel Savage, one of the executors of the last will and testament of William F. Taylor, late of Edgefield District, South Carolina, deceased, and Samuel Taylor, brother of the said William F. Taylor, deceased, for himself and in behalf of his sister, Mary Rainey, and her husband, William Rainey, of Scotland, being desirous of adjusting the affairs of said estate so far as have come to the hands of the said Samuel Savage, consent and agree that the said executor shall pay over to the said Samuel Taylor at this time as much money as he can spare, and on or before the first of April ensuing, to pay over all the money that may be collected on account of said estate. The said Samuel Taylor, for himself and in behalf of his said sister Mary and her said husband, doth hereby consent and agree, on receiving from the said executor all the moneys that can be collected by the first of April next, to allow the said executor two years from this time to close the remaining business of said estate, and for the money heretofore deposited in the Bank of Augusta and which has since been put out at interest, no interest will be required of the said executor for said money during the time the same remained in bank, and [on] all moneys which may be collected hereafter by the said executor no interest will be required, provided the same shall be paid over to the said Samuel Taylor, or his lawful agent, in a reasonable time after the same shall have been collected. The said executor hath permission to compromise all doubtful claims or debts due to the said William F. Taylor in his lifetime or any litigated cases relating to the recovery of lands in South Carolina."

"Given under my hand this 9 February, 1816."


"For himself and for my sister,"


"WILLIAM RAINEY, her husband"


On the day of the execution of the above, namely, 9 February, 1816, Savage paid to Taylor $5,300, and on 26 March following the further sum of $4,700, both of which are entered in the account settled on 3 February, 1817, with the Court of Ordinary.

On 2 April, 1816, Samuel Taylor executed a power of chanrobles.com-red

Page 46 U. S. 239

attorney to Adam Hutchinson and Peter Bennock or either of them, authorizing them to receive on behalf of his sister, Mary Rainey, and her husband, William Rainey, all sums of money which were, are, or may become due and owing to the estate of the late William F. Taylor, and to sue for or prosecute all actions necessary for the recovery of a real estate in the State of Kentucky belonging to him, the said Taylor, and his sister.

On 26 September, 1817, Savage addressed a letter to Taylor representing that there was great difficulty in collecting money due to the estate, his anxiety to bring the matter to a settlement, that during the winter he would be able to pay three or four thousand dollars, but that he must advance it out of money arising from the sale of a tract of land of his own, &c.

On 22 April, 1818, Savage paid to Hutchison the sum of $10,037.36, as already mentioned.

In 1818, Savage went to Kentucky, and we pass on to the other branch of the complainants' claim, namely,

2. Transactions respecting Kentucky lands.

In order to understand the position of William Forbes Taylor, the testator, with regard to these lands, it will be necessary to recur to the original and subsequent titles.

On 25 May, 1786, Patrick Henry, Governor of Virginia, in consideration of six land office Treasury warrants as well as by virtue and in consideration of a military warrant under the King of Great Britain's proclamation of 1763, granted to Daniel Broadhead, Jr., a tract of land containing four thousand four hundred acres, beginning &c.

On 30 September, 1786, Broadhead conveyed the land to William Forbes, of the City of Philadelphia, in consideration of the sum of 183, Pennsylvania currency.

On 19 February, 1794, Forbes conveyed the land to John Phillips for the consideration of 37 10s.

On 3 June, 1802, John Phillips conveyed the same land to Mary Forbes, widow and administratrix of William Forbes, deceased, in trust for the right heir or heirs of the above-named William Forbes. The consideration was one dollar.

On 17 September, 1805, Mary Forbes, widow and administratrix, conveyed the land to William Forbes Taylor, of South Carolina, in trust for the right heir of William Forbes, deceased. The consideration was one dollar.

In 1808, Taylor went to Kentucky and caused about thirty ejectments to be brought against the occupants of the land.

In 1811, William F. Taylor died.

On 14 September, 1815, Mary Taylor, otherwise Rainey, and her husband, William Rainey, executed a power of attorney to Patrick McDowell and Samuel Taylor authorizing them to sue for &c., all houses and lands which belonged to chanrobles.com-red

Page 46 U. S. 240

William Forbes. The power contained the recital of a pedigree by which Mary Taylor claimed to be the niece and one of the heirs of William Forbes, deceased, and of his intestate son, Nathaniel Forbes.

In 1818, Samuel Savage, the executor of Taylor, went to Kentucky, and whilst there executed two deeds, one to Alexander McDonald and others, and one to Zachariah Peters and others, for portions of the land in question. The sums which he is stated in the deeds to have received are $800 in one case, and $1,318 in the other.

In 1818, Savage removed from South Carolina to Tennessee, and afterwards to Alabama.

In 1836, William Primrose, who had married Eliza Taylor, the daughter of Samuel Taylor, went to Kentucky and made a compromise with many of the settlers on the land.

In June, 1837, Primrose visited Savage in Alabama and inquired what had become of the Kentucky lands, to which Savage replied that they had never been sold, but upon the production of the two deeds above mentioned, admitted that he had executed them, but denied that he had ever received any money for them.

In December, 1837, Savage died, and George M. Savage became his executor.

On 1 September, 1838, the bill in this case was filed by Samuel Taylor, William Rainey, Alexander Rainey, and Elizabeth Rainey (all of whom were aliens, residing in Scotland) against George M. Savage, the executor of Samuel Savage, deceased.

The bill states that William F. Taylor, who was a native of Scotland but a naturalized citizen of the United States, died in the Edgefield District in South Carolina, about the year 1811, having first made his last will, which was duly proved and admitted to record before the Court of Ordinary in the Edgefield District on 11 August, 1811, and appointed Patrick McDowell, Duncan Matheson, William Ross, and Samuel Savage his executors, who, on the said 11 August, 1811, were duly qualified as such, and took upon themselves the trust reposed in them.

By the provisions of the will, the bill further states, after the payment of sundry legacies, all of which it is suggested were paid, the testator gave, granted, and devised all the remainder or residue of his estate, remaining after the payment of said legacies, to his brother, Samuel Taylor, of the Parish of Drumblait and Shire of Aberdeen in Scotland, and to his sister, Mary Taylor, of the same place, share and share alike, provided that both of them were alive at the time of the testator's death and have issue, which issue, after the respective deaths of his brother and sister, were to share the same equally, but if either of them should die without issue, then the survivor, or, if both should be dead, the issue of said Samuel and Mary, were to be entitled to the whole of the remainder or residue of said estate, share and share alike. chanrobles.com-red

Page 46 U. S. 241

The bill further states that the residuary legatees were alive at the time of the testator's death; that they were both legally married, and respectively had issue; that the sister, Mary Taylor, is dead, and that the complainants, William, Alexander, and Elizabeth Rainey, are her issue.

The bill further states that the executors executed their trusts severally; that Matheson and Ross departed this life, the first in 1812 and the last 1816; that the principal part of the business appertaining to the estate in Georgia was under the management of McDowell, and that in South Carolina under that of Savage; that Matheson and Ross fully settled their accounts in their lifetime, and that the balances due from them have been fully paid to the complainants.

The bill further states that the bulk of the testator's estate was in South Carolina, and was managed, as before mentioned, by Savage, and that an amount of property belonging to the estate, equal in value of $100,000, went into Savage's hands, of which the sum of fifty thousand dollars has never been accounted for.

The bill further states that, at the time of the testator's death, Savage was justly indebted to him on open account, as stated on the testator's books, in the sum of $789.70, which was never noticed in the inventory of Savage as returned to the ordinary; that he received, in cash on hand at the time of the testator's death, the sum of $681.75, of which no return was ever made by Savage; and that Savage fraudulently concealed his indebtedness, and the receipt of the last-mentioned sum of money. In proof of these statements, an inventory and appraisement of the effects of the testator in South Carolina are exhibited, from which it is alleged it will appear that no returns were made of the last-mentioned liabilities, and from which it will also appear, as it is further alleged, no returns were made of debts due to the estate, although a large amount of debts due by bond, note, and account came to Savage's hands.

The complainants charge that there is no account of sales returned to the Court of Ordinary by Savage; that a large quantity of valuable land in South Carolina was sold by the executors, the proceeds of which, to the amount of several thousand dollars, went into Savage's hands, and have never been accounted for; that they have examined the records of the said Court of Ordinary, and cannot find that any final settlement was ever made therein by Savage; that only partial accounts were rendered by him, of which they file transcripts as exhibits, marked from 1 to 10; that an item of $10,037.55, in exhibit 10, which is alleged to have been paid to the attorney in fact of the complainants, is untrue; and they require proof not only of the payment, but of the authority of Hutchinson (the person to whom it purports to have been paid), to receive it; that the exhibit 10 appears to be the last attempt on the part of chanrobles.com-red

Page 46 U. S. 242

Savage to render an account, and they charge the fact to be that Savage retained $3,232.31 for commissions and traveling expenses without charging himself with any interest on the amount of money received by him, which alone would amount to the sum of $5,000, up to the time that Savage alleges it to have been paid over by him to the legatees; and that amount, at least, with interest to the time of filing the bill, the complainants claim as their undisputed right.

The complainants further charge that in the year 1818, Savage removed to Tennessee; that in the same year he went to Kentucky, where the testator had lands to a large amount and of great value; that he then fraudulently represented himself to be the only surviving executor of the said estate, although McDowell was still living, and that regardless of the provisions of the will requiring the lands to be sold on a credit of one, two, and three years, with securities and a mortgage on the premises sold, Savage sold for cash 1,059 acres of the land for the sum of $2,118; in proof of which they refer to exhibits D and C, which are copies of deeds executed by Savage to Alexander McDonald and others, to Zachariah Peters and others, of record in Kentucky.

They charge these lands to have been then worth eight dollars per acre, and would have sold for that if the terms of the will had been complied with, and that the lands were worth at the time of filing the bill forty dollars an acre.

They further state that Savage, shortly after these sales, removed to Lauderdale County, Alabama, where he resided until his death, which occurred about the month of December, 1837; that he never made any return of said sales, but fraudulently concealed them from the complainants; that Primrose, the attorney in fact of the complainants, inquired of Savage a few months before his death if anything had ever been done with the Kentucky lands, and that he fraudulently answered that they were unavailable, and had never been sold; which statement he continued to make until the deeds were shown to him, and then he acknowledged he had sold them.

They further state that the quantity of lands actually embraced in the deeds C and D was at least two hundred acres more than the quantity mentioned therein; that besides the lands above referred to, the testator had, in Kentucky, other lands to the amount of thirty thousand acres, more or less, of the value of $500,000, all of which could have been sold by Savage, or by proper diligence secured to the estate; that he neglected to attend to the last-mentioned lands; that after they were secured to the testator by judgments at law, bills in chancery were filed by the settlers thereon, in the Kentucky courts, and through the gross neglect of Savage decrees were permitted to go in their favor, and the lands were lost.

They further state that George M. Savage had become the personal representative of Samuel Savage, and they make him a defendant to the bill. chanrobles.com-red

Page 46 U. S. 243

Finally, they pray for an account and that the defendant, the executor, be decreed to pay the amount due from Samuel Savage; that he be decreed to pay either the actual value of the Kentucky lands sold by Samuel Savage or their present value, with interest, together with the value of the lands lost by Samuel Savage's negligence.

On 25 March, 1839, George M. Savage, the defendant, filed his answer.

The answer denies that Samuel Savage undertook the execution of the will or the trusts therein, as regarded any property or effects whatever of the testator, or other duty, beyond the limits of South Carolina. On the contrary, as far as he had knowledge or belief, the will was never admitted to record or proven in any other state than South Carolina, nor did the executors qualify in any other state, and he expressly states that they did not qualify, nor was the will ever proven or recorded, in Kentucky, to the defendant's knowledge; nor was it the right or duty of the executors to interfere with the testator's property situated in any foreign jurisdiction beyond the limits of South Carolina, where the testator was domiciled at the time of his death.

The answer declines admitting that Samuel or Mary Taylor, or either, took any estate or interest in the property of the testator under the will or that they are in any manner entitled under the same. On the contrary, he charges that the bequests in the will are void, and vest no interest or estate either in the said Samuel or Mary, either as legatees or otherwise, or in the complainants. Nor is it admitted that the complainants are the next of kin, having right to prosecute this suit, but on the contrary the supposed claim of Mary Taylor could only be prosecuted through the authority of her personal representative, legally appointed in the courts of the United States.

The defendant further states that it is not true that the principal part of the business of the estate in South Carolina was under the management of Samuel Savage exclusively; on the contrary, the four executors jointly executed and filed in the Court of Ordinary of the Edgefield District a true and perfect inventory of the estate, together with an account of sales of both real and personal estate, as appears by the exhibits L and M.

The defendant further states that Samuel Savage had nothing to do with estate in Georgia; that the property both real and personal in South Carolina, which came or ought to have come to the hands of the said Savage, was truly accounted for, as also appears by exhibits L and M, and the various settlements made by Savage from time to time in the Court of Ordinary, which are contained in exhibit N.

The defendant denies that there was any property or estate or other effects of that testator in South Carolina which was not accounted for in the said court. chanrobles.com-red

Page 46 U. S. 244

The defendant denies that $100,000 of the testator's estate went into Savage's hands, full fifty thousand of which was never accounted for. On the contrary, the before-mentioned records exhibit a full and complete accounts of all property or effects which came or ought to have come into Savage's hands, all of which has been truly accounted for and paid over to Samuel and Mary Taylor or their agent.

The defendant denies the indebtedness of Savage for the account of $789.70.

The defendant also denies the allegation in the bill that Savage received $681.75, cash on hand, at the testator's death.

The defendant also denies the charge of fraudulently concealing the before-mentioned items of indebtedness from complainants.

The defendant, further answering, states that the exhibit L corresponds with exhibit B in the complainant's bill, and denies that no return of debts due to the estate was made to the court by the executors; on the contrary, he avers that Samuel Savage and Ross, in January and February, 1812, severally returned and filed in the said court an inventory of the bonds, notes, accounts, and other claims due to the estate, as appears by exhibits O and P in the answer, which include all that was due from all sources, as far as the defendant has heard, knows, or believes.

The defendant, further answering, denies the allegation in the bill, that no account of sales was ever returned to the ordinary by Samuel Savage; on the contrary, the records show a complete and full return of sales, of both real and personal estate, made by Savage and the other executors.

The defendant also denies that a large quantity of valuable land in South Carolina was sold by the executors and that the proceeds, to the amount of several thousand dollars went into the hands of Samuel Savage; on the contrary, the executors sold no lands in South Carolina but what are fully accounted for to the said court.

The defendant insists that Samuel Savage, as the executor in South Carolina, on 22 April, 1818, made a full, fair, and final settlement of all his transactions with said estate in the said Court of Ordinary, in presence of Adam Hutchinson, the attorney of the said Samuel and Mary Taylor; the accounts of the said Samuel Savage were then balanced, and the sum due from him paid over in said court to the said Hutchinson, as the attorney and agent aforesaid, as will appear by the exhibit N, and also by a copy of a receipt of Samuel Taylor and William Rainey and wife, by the said Hutchinson, as their attorney, executed in their name to Samuel Savage, on 22 April, 1818, for the sum of $10,037.36 1/4, filed as exhibit T.

The defendant denies that Samuel Savage ever applied the money of the estate to his private use. chanrobles.com-red

Page 46 U. S. 245

The defendant alleges that the said Samuel Savage stated to him that he had never made any interest out of the funds of the estate, and the defendant asserts that he believes the statement to be true.

The defendant further states that the complainants can set up no claim for interest, because, on the ninth of February, 1818, Samuel Taylor, for himself and his sister, the said Mary Rainey, and her husband, William Rainey, executed the exhibit § to the said Samuel Savage, which is an agreement, made under circumstances mentioned in detail by the defendant, in substance as follows:

"The said Samuel Taylor, and the said William and Mary agreed that Samuel Savage should pay over to the said Samuel Taylor, at that time, as much money as he could spare, and in the ensuing April to pay over such other moneys as might be collected on account of the estate; and the said parties agreed, on receiving all moneys that could be collected by the first of April ensuing, to allow the said Samuel Savage two years from that date to close the remaining business of the estate; that for the money theretofore deposited in the Augusta Bank, no interest was to be required for the time the same remained in bank; and that on all moneys that might be collected by the said Samuel Savage, no interest was to be required, provided that same should be paid over to the said Samuel Taylor, or his agent in a reasonable time after it was collected."

The defendant further states that on the very day of the agreement, Samuel Savage paid to Taylor, for himself and his sister, the sum of $5,300, as appears by Taylor's receipt. And on 26 March, 1816, he again paid the sum of $4,700, as per Taylor's receipt; that Samuel Savage proceeded with all dispatch to close the remaining business, and in April, 1818, as before stated, made the final settlement of the estate, all which, it is insisted, is a complete bar to interest.

The defendant further states that Samuel Savage did not retain the sum of $3,232.31 for commission and traveling expenses, but the exhibit N will show that he did retain, which the defendant insists was a reasonable sum, and came before the ordinary for examination.

The defendant further states that as late as March, 1816, Samuel Taylor was satisfied with the manner in which Savage conducted the business of the estate, as appears by a copy of a letter dated 26 March, 1816, exhibit Z; that shortly after the date of this letter, Taylor left the United States, having first constituted the said Adam Hutchinson the agent of the legatees to supervise the management of the estate, and finally to settle it, and receive the moneys. And a copy of the power of attorney to Hutchinson is exhibited, G, the original being destroyed.

From that time, no further claim is set up, and the whole business sleeps for more than twenty years, when this attempt is made to overhaul the accounts and settlements before the ordinary. chanrobles.com-red

Page 46 U. S. 246

The defendant therefore insists:

1. That the settlements are absolutely conclusive, and that it is not competent for any other court to open and inquire into the correctness or regularity of the proceedings before the ordinary.

2. That, if not conclusive, they are prima facie evidence of the correctness of the settlements.

3. Upon the statute of limitations and lapse of time, as evidence that the estate has been settled, and all the moneys paid over.

As to the Kentucky lands, the defendant states he is informed and believes that the testator was not the owner of any lands in that state at the time of his death or since; that a suit was there pending many years before his death for 4,000 or 5,000 acres of land, and prosecuted till 8 January, 1818, when judgments were recovered &c., is not denied; and the defendant has been informed that Primrose, the pretended agent of the complainants, in the year 1836, made a compromise with the tenants in possession of the said lands, by which, for an inconsiderable sum, he agreed to release the claims of the complainants. But if, on investigation, it should be that the testator had title, then the defendant insists:

1. That that title, upon his death, escheated to Kentucky, and that if the lands were ever subject to trusts, such as those in the will, the same were lost when the lands escheated, and could not be enforced either in law or equity.

2. That the power to sell, being a naked power and having been conferred on four executors, could not be executed by one so as to convey the title.

The defendant admits that Samuel Savage, in the year 1818, did go to Kentucky, and that he executed the papers D and C, exhibited in the bill; but he denies that he fraudulently represented himself as the only surviving executor, and he also denies that the execution of the deeds violated the provisions of the will or that he had authority, however he may have thought so himself, to convey the lands under the will.

The defendant further insists that the sales were merely void, and did not affect the rights of the complainants, on another ground -- that McDowell, another executor, was alive at the date of the deeds and did not join in the conveyance.

The defendant further denies that the lands in Kentucky were sold for cash, but for an inconsiderable amount in property.

And if it shall be material, he pleads as to the consideration for the sale of those lands the statute of limitation and lapse of time.

The defendant admits that Samuel Savage died in November, 1837, in Lauderdale County, Alabama, where he was domiciled; that the defendant is the executor of his will, and is a citizen of Alabama.

Finally, the defendant pleads to the jurisdiction of the court.

On 31 May, 1839, the complainants filed an amended bill. chanrobles.com-red

Page 46 U. S. 247

They admit therein that the domicile of the testator was in South Carolina.

That his father and mother died before his death.

That Samuel Taylor was his only brother, and Mary Taylor his only sister.

That she intermarried with William Rainey, and had issue the three other complainants.

That the testator had no kindred in the United States at the time of his death.

And that the said Samuel and Mary were at that time his only heirs at law.

The complainants further state that Samuel Taylor visited South Carolina in 1815 for the purpose of settling with the executors, and that he received in February and March, 1816, from Samuel Savage, the sum of $10,000, as part of the estate, but no interest was paid, for the reasons assigned by him.

That Savage wrote to Taylor in September, 1817, a letter, which is exhibited and the substance of which is set forth. Exhibit I.

That the legatees never received any moneys afterwards.

That Savage never made a final settlement of his accounts.

That after his removal from South Carolina, he received at least $10,000 of the money of the estate.

That since filing their bill, they have received the testator's cash book, from which it appears that Savage was indebted, as is alleged in the original bill, at the time of the testator's death.

That the executors did not execute any bond for the faithful execution of their trusts, &c.

The answer of the defendants was filed on 19 September, 1839, and in almost every particular traverses the allegations of the amended bill. It need not, therefore, be set forth at length.

These were the issues between the parties.

The district court, after a careful review of all the points in the cause, decreed that the complainants recover of the defendant the sum of $5,212.92, to be levied of the goods and chattels, lands and tenements, of the said Samuel Savage, and that the defendant pay the costs of the suit.

The above sum of $5,212.92 was made up of the principal sum of $2,118 received by Savage on 21 July, 1818, from the sale of the Kentucky lands, and interest on that amount from the said 21 July, 1818, to the commencement of the term of the court when the decree was rendered, amounting to the sum of $3,094.92.

On the day before the decree was rendered, George M. Savage, the executor of the last will of Samuel Savage, was removed from his office of executor by the court in Alabama having jurisdiction to make the removal, and Vincent M. Benham was appointed the chanrobles.com-red

Page 46 U. S. 248

administrator de bonis non with the will annexed of the said Samuel Savage.

The complainants appealed from the decree and executed bond to prosecute the appeal. They complained that the district court erred in not decreeing the whole amount claimed by them in their bill and amended bills. But they ordered execution to issue for the amount for which the decree was rendered, which was levied on a large number of slaves which were claimed as belonging to the estate of Samuel Savage.

An order granting an appeal to the defendant George M. Savage was also made by the court and bond was ordered to be given within a stipulated time, but in consequence of the removal of George M. Savage the order could not be executed, and no bond was executed in conformity with the order.

Upon a motion made to this Court by Benham, at the January term, 1843, the execution that issued on the decree was held to be a nullity, and an intimation give that the decree was not rendered against the proper party in the district court.

On 4 October, 1844, a bill of revivor was filed by the complainants against Vincent M. Benham, the administrator de bonis non of Samuel Savage, and he was brought before the court by process.

In November following, Benham filed his answer to the bill of revivor, and a demurrer at the same time.

The causes of the demurrer were:

1. That the bill of revivor did not state the proceedings and relief prayed by the original bill.

2. That it did not show or allege that the defendant ever had any assets belonging to the estate of Samuel Savage.

3. That the defendant, as administrator de bonis non, with the will annexed, of Samuel Savage, could not be made a party to the original bill by bill of revivor.

4. That the defendant, as such administrator, was not in privity with George M. Savage, against whom the decree was rendered, and for want of that privity a bill of revivor would not lie.

5. That the bill of revivor did not show whether the decree was rendered before the removal of George M. Savage as executor.

The court overruled the demurrer.

The answer stated that the defendant had no personal knowledge of the original suit or of the proceedings and decree therein. It admitted that the removal of George M. Savage from his office of executor on 28 November, 1842, and that the defendant, on the same day, within a few hours afterwards, was appointed administrator de bonis non, with the will annexed, of Samuel Savage, by the same court. It alleged that at the time the original decree was rendered against George M. Savage, the defendant Benham was the administrator de bonis non. chanrobles.com-red

Page 46 U. S. 249

On 29 November of the same term, the defendant Benham moved the court to dismiss the suit for want of prosecution, which motion was overruled.

The district court, notwithstanding the defendant's answer, ordered that the decree against George M. Savage as executor of Samuel Savage be revived against said Benham, administrator de bonis non, with the will annexed, of Samuel Savage, and the defendant Benham prayed an appeal.

Upon these cross-appeals the cause came up to this Court. chanrobles.com-red

Page 46 U. S. 260


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