Duncan research files of
"Chancery cases Determined in the Court of Appeals of South Carolina, April term, 1836, and February term, 1837" by William Riley; ("Riley's Equity"), pgs.64 to 76 (California State Law Library, Sacramento, 1/2004)
DUNCAN vs. TOBIN; in Chancery; Court of Appeals of South Carolina, Charleston; Riley. Eq. 64; February term 1837; Filed 14th March 1837.
Heard before Chancellor D. Johnson, Barnwell, January Term, 1837.
This bill was preferred to obtain the instructions of the court upon certain matters in controversy between the defendants, and which arose out of the will of the complainant's testator. In the solution of them, it will be necessary to have recourse to the general as well as the particular provisions of the will. For the purpose of more convenient reference, I have numbered the clauses in the margin, corresponding with the numbers in the original will, a copy of which will be directed to be filed with this decree.
1st. The first clause contains the usual direction, that the testator's just debts should be paid.
2d. The second is in these words: "If my executors shall find it judicious and proper, I would prefer that my estate be kept together and conducted as in my life time, until January, 1838, or if they prefer it, that the negroes be hired out, the perishable property sold," &c.
3d. "From the net annual income of my estate, I desire that $400, if so much be necessary, be applied yearly and every year, for the support and education of my natural son Cornelius Tobin;" concluding with a solemn request to his executors to bestow every care and attention to his education both academical and collegiate.
4th. In the fourth clause he gives to Orsamond D. Allen, in trust for the sole and separate use of Elizabeth Nelson, the mother of his natural son, the sum of $140 annually, to be paid out of the net annual income of his estate until the year 1838, and if she should then be alive, he directs that a sum sufficient to produce that amount annually, should be set apart out of the proceeds of the sale of his estate, and invested in public or private securities, to pay the said annuity. On her death the fund to go over to certain relations in Ireland.
5th. "From the net annual income of my estate, I further give and bequeath the sum of $1000, to be paid as soon as possible, on account of her advanced age, to my aunt Mary Dwyer, of Kilkenny, Ireland." In the event of her being dead, he directs this legacy to be paid to her children or grand children, as the case might be, in 1838.
6th. "The balance of the net annual income of my estate, (if any,) I give and devise to my sister Mary, my half brother Michael, and my half sister Caty, to be divided between them or their children".
7th. The questions raised turn principally on the seventh clause of the will, which is in the following words, "Although I have expressed a wish that my real and personal estate be kept together until 1838, it is not my intention that such wish be imperative on my executors; leaving it to their discretion to sell the whole sooner, if they think it most advantageous, on a long credit, the payment secured as I shall presently direct. If not sold sooner, I direct that my whole estate, real and personal, be sold in the month of January, 1838, on a credit payable in instalments of at least one, two and three years, the purchase money to be secured by bond, mortgage," &c.
8th. In the eighth clause, the testator disposes of the proceeds of the sales and the residue of the estate; giving to his legitimate sons Daniel and John, each one fourth part, one other fourth part to be invested in negroes, or public or private securities, for the use of his natural son, Cornelius, for life, remainder over and the remaining fourth part be equally divided between his sister Mary, his half sister Caty, and his half brother Michael, all of Ireland, and if they be dead, to their children.
9th. In the ninth and last clause, he gives as a reason for his providing for his relations in Ireland, instead of giving this portion to his legitimate sons, that he had some time before divided his estate equally between them and himself, and appoints executors, of whom the complainant alone has qualified.
In a codicil the testator recites the death of Elizabeth Nelson, and in consequence thereof gives one thousand dollars to his sister Mary, and to his half sister Caty, and half brother Michael, each the sum of $500, "to be paid them severally at the time of the sale or division of my estate, as in my will directed," &c.
The testator died in October, 1830, leaving an estate consisting principally of lands, negroes and live stock, and early in 1831, the complainant sold all the perishable estate except the negroes, and such else as was necessary, to carry on the business of planting, as the testator did in his life time, and made a crop on the plantation that year; but finding that comparatively unproductive, and upon a consultation with the legatees resident here, and with judicious planters who were acquainted with the estate, and all concurring that it was the best and most judicious course, he sold the whole residue of the estate, real and personal. The whole estate, ascertained by the sale, amounted to $40,000, or upwards.
The defendant, Darling Peeples, claims the legacy to John Tobin, under an assignment from him; and the defendant, Thomas Cormick, claims the legacies to the testator's sister Mary, his half sister Caty, and his half brother Michael, under assignment from them, and their legal representatives.
The defendant, Thomas Cormick, insists that under the correct construction of the will, the net proceeds of the sales and residue of the estate, are not distributable until January, 1838, and that after deducting the annual legacy of $400, for the support and education of the testator's natural son Cornelius, out of the income, he is entitled to the interest of the fund of the estate, up to that time, under the bequest of "the balance of the net annual income of my estate, if any," to the testator's sister Mary, &c. contained in the sixth clause of the will. The other parties interested in the estate, insist that its distribution must have relation to the sale by by (MAD: twice) the executor, in 1832, and consequently, that defendant Cormick is only entitled to a portion of the accruing interest corresponding with the interest which he takes in the corpus of the estate. On this question alone, the complainant asks the advice and direction of the court.
The question then is, when, under the circumstances which have occurred, did the testator intend that the residuum of the estate should be distributed? If not, until January, 1838, then of course the position taken by defendant Cormick must prevail -- if upon the sale by the executors, then it necessarily fails, and the estate must be distributed as contended for by the other defendants.
All the particular rules laid down for the interpretation of wills, are mere instruments, by which to ascertain the true intent, which, according to the universal rule, and from which there is no exception, must always prevail -- particular rules can, therefore, never apply where the intention is manifest. We must, therefore, look into this will, for the purpose of ascertaining the intent of the testator, as to the time it was his will the residuum of his estate should be divided, and enquire before we resort to particular rules, whether there is reason to doubt about his intention.
The direct instructions on this subject will be found in the second and seventh clauses of the will; which when placed in juxtaposition, and read together, will be found to contain instructions to the following import, viz, "It is my desire that my estate be kept together, and conducted as in my life time, until January, 1838; but if my executors prefer it, my negroes may be hired out, and my perishable property sold. This wish, however, is not to be regarded as imperative, and if my executors shall think it more advantageous, and that the leading purposes of my will, will be promoted by it, then they are authorized to sell the whole at any time. If not sold before, they must sell in January, 1838." Now if the intention depended alone on the proper construction of these two clauses, there could be no question. The terms thus rendered, are too plain and unequivocal to admit of any doubt that the residuum was distributable whenever the estate was sold. Whether the sale was made under the discretion vested in the executors, or the time appointed by the will, there would be no motives for the executors retaining it longer.
But it is insisted, that this conclusion is opposed by the third clause of the will, which sets apart $400 of the annual income of the estate, for the support and education of the testator's natural son Cornelius; by the appropriation in the fourth clause of $140 annually out of the income, as an annuity for Elizabeth Nelson; by the legacy of $1,000 to Mary Dwyer, out of the same fund provided for in the fifth clause; and lastly by the bequest of the net balance of this fund, the annual income, to the testator's sister Mary, his half sister Caty, and his half brother Michael; all of which, it is contended, evidently point to January, 1838, as the time for the distribution of the estate.
Now that the intention of the testator shall be collected from the whole will, is a rule as universal, as that the intention when ascertained, shall prevail. It is equally certain that it is the duty of the court, to construe a will so as to give effect, if practicable, to every word, sentence and clause. But if there be an obvious general intent, which is opposed by a particular provision, so directly, that they cannot be reconciled, the latter will control the former. This last rule proceeds on the plain principle that every one has the right to put his own interpretation on the language which he uses. Thus, if one possessed of estates in land, whereof he holds one part in fee, and another part by a different tenure, devise all his real estate to A. and adds, "whereby I intend the lands whereof I am possessed, in fee," this specification necessarily controls the general expression, as it indicates the true intent. According to this principle, if any of the dispositions of this will, renders it necessary that the executor should retain the funds in his hands after the sale by him, until January, 1838, the estate should not be distributed until then.
Will an earlier distribution defeat the appropriation of $400, for the support and education of Cornelius, and the annuity of $140, for Nelson, who appear to have been the peculiar objects of the testator's bounty? Clearly not. Cornelius' portion of the estate, which may be set down in round numbers at $10,000 invested in any of the modes presented in the will, might be reasonably supposed to produce an annual income greater than the sum of $400 appropriated to his support and education; and the direction that a sum sufficient to produce an annual income of $140 should be invested to pay the annuity for Nelson, renders it indifferent whether the fund remains in the hands of the executors, or a part of it is thus invested. It is not necessary, therefore, that the funds should remain in the hands of the executors, for either of those purposes.
Whether, if the income had failed, Mary Dwyer would have been entitled to be paid the legacy of $1000 out of the corpus of the estate, would be a question not free from difficulty. The income is, unquestionably, the fund primarily chargeable with the payment, but the court in all doubtful cases incline to that construction, which renders legacies general, instead of specific. In the case of Cogdell vs. Cogdell, 3 E'y. Rep. a legacy out of a particular fund was held to be a charge upon the estate generally. But the question has not been raised here; not by Cormick, because she would be entitled in preference to him, on the same principle on which he claims the residue of the accruing interest. Her claim is concurred in by all the other parties. It is not my purpose, therefore, to express any opinion on it. The object of referring to it, is, to aid in the construction of the other provisions of the will.
That the testator intended that this legacy should be paid in any event, is, I think, fairly inferable from the reasons on which the testator founds it, the advanced age of the legatee, and the instructions that it should be paid as soon as possible. If it be conceded, that the executor was bound to retain the estate until that sum should be raised from the income, that object being attained, for what purpose should he retain it longer? Can it be, that the surplus should accumulate for the benefit of his sister Mary, for his half sister Caty, and his half brother Michael? I think not. The will contains no specific directions to that effect. The bequest of the balance of the net annual income, in the sixth clause, is, in its terms general. Its generality is extended by the qualification, "if any" -- manifesting a secondary intent, and rendering this bequest subordinate to the other dispositions of the will. So that, whether Mary Dwyer is paid her legacy out of the income, or the corpus of the estate, all the purposes of keeping it together are attained, and the estate must be distributed.
A general view of the dispositions of this will lead irresistibly to the same conclusion. The testator owned an estate consisting of lands, negroes, &c. which he had employed in planting. In the second clause of his will he expresses a desire that it should be kept together and employed as in his life time, or, if his executors prefer, that the negroes should be hired until 1838, and the rest of his perishable property sold. In the 3d, 4th, 5th, and 6th, he disposes of the whole annual income, necessarily, with reference to the state of things contemplated by the second clause, (his estate kept together, and employed in planting, or his negroes hired out, and his other perishable property sold,) for as yet he had not provided for any other disposition of it. In framing the seventh clause, it is apparent, as remarked by the counsel, that the testator went back and reviewed what he had done, and he might well have reasoned, and probably did, that the income from planting or hiring of negroes was uncertain, that a strict adherence to the instructions contained in the second clause might defeat the leading purposes of his will; circumstances might occur, which could not then be anticipated, which might reduce the income within the amount charged upon it. It was fit, therefore, that the executors should be clothed with discretionary powers, ample enough to meet any contingencies that might arise. This confidence might be the more safely confided in them, because by no possibility could it work any prejudice to his legitimate or illegitimate sons, nor to his brothers and sisters in Ireland; for the corpus of the estate was directed to be divided amongst them. It could work no change in their relative rights, except as to the residue of the annual income, which has already been shown to be secondary to the other dispositions of the will. If the legacy of $1,000 to his aunt be regarded as general, that would be paid out of the corpus of the estate. If chargeable on the income only, it would only be necessary to retain the estate until that amount be raised from the income, and, in that case, it would be the interest of those entitled to the corpus to pay that legacy and assume the management of their own funds. It would be safe, therefore, to clothe the executors with discretionary powers, to sell whenever they shall see fit, and distribute the corpus of the estate as directed.
That the executors were clothed with discretionary power to sell the estate when they should deem it advantageous, and that the sale made in 1832, was well authorized under this power, has not been called in question. It follows, that the estate was then divisible. The disposition of the income was evidently predicated on, and had reference to the income to be derived from planting, and, if the executors exercised the discretion in good faith, a fact not questioned, and this source was thus cut off, and the legacies payable out of it wholly defeated, still it would hold good, not as the act of the executor, but as the will of the testator operating through the agency of the discretion of the executor.
There is another circumstance which ought not to be overlooked. From every thing that appears on the will, it was the intention of the testator to distribute the bulk of his estate in four equal parts, between his two legitimate sons, his illegitimate son, and the bulk of his relations in Ireland, as a class. There is certainly nothing which indicates that this class were the dearest objects of his bounty. But if the construction they contend for should prevail, they will take not only a share of the corpus of the estate, equal to the whole interest of the other legatees, who were intended to be put on a footing at least of equality with them, but the interest of the whole capital of the estate, deducting the annuities charged upon it from 1832, to 1838, which assuming the estate to be worth $40,000, would amount to $16,800 (MAD: faint copy), and deducting therefrom $400 a year for Cornelius, and $140 for Nelson, would leave a net balance of $13,660, of the interest in favor of the Irish relations, and exceeding thus much the other legacies; whereas it is obvious, whether we look to the will, or the relation in which the parties stood, equality at least was intended. The court would never lean in favor of such a construction.
The complainant is, therefore, advised and instructed, and it is hereby decreed, that in the payment of the legacies under this will, he should apportion the funds of the estate on the principles of this decree, having regard to the time of the sale of the estate made by him in 1832, as the time at which the interest of the defendants were fixed and determined.
Costs to be paid out of the funds of the estate.
Grounds of Appeal.
1. That the discretion vested in the executors, as to the time of sale, cannot affect the interests of the legatees under the will.
2. That it is not to be supposed, that the testator meant, that the rights of the legatees should be dependant on the will of the executors, unless clearly so expressed.
3. That the meaning of the testator, upon critical examination of his language, is, that the income of his estate, 'till 1838, shall be distributed in the same way, whether the estate be, or be not sold.
T.W. GLOVER, for Appellant.
Chancellor J. JOHNSTON delivered the opinion of the court.
There is no doubt that the intention, to be gathered from the whole face of the will, must govern. And that the leading purposes of the testator should be consulted, rather than those which appear to have been secondary. The difficulty is not about the principles of construction, but the application, of them.
A good index of a testator's general intention, will be found by considering a case in which every part of his will would have had full operation; in which his every wish would have been completely gratified, and none disappointed. The will (if we view it in reference to such a contingency,) groupes (MAD: as spelled) the legatees together, as they stood in the mind of the testator, and informs us of the relative degrees of affection with which he regarded them.
I presume we shall learn this testator's leading purposes, by looking at what he directed, had all things gone so that his favorite scheme of keeping up the planting till 1838, had taken effect; in which case, according to the concessions of all parties, every clause and part of his will would have had an unrestricted operation.
If we view this will in this light, the testator's intention is plain. The estimation in which he held his Kilkenny relations, (a phrase, which, for brevity's sake, I substitute for his sisters and brother, Mary, Caty and Michael,) was such, that he was willing to give them nearly the whole income of his estate, until 1838, and to add to this, in 1838, one fourth of the corpus, with two thousand dollars besides; while to his natural son, he gave barely one fourth of the corpus, in 1838, with a small annuity, until that time, for his education; and to his sons, each, only a fourth of the corpus, in 1838.
Judging by these bounties, who can hesitate to say, that the sons were less objects of his bounty, than the Kilkenny relations? Or that his leading intention was to give more to the latter, than to the former?
So much for the general intention. And so much on the construction to be gathered from the whole face of the will.
Now, if there is any thing on the will to shew, that, in any contingency which has happened, the testator would have increased the provision for his sons, or diminished that of his Kilkenny friends, -- he must be obeyed. But is there any thing to shew this?
That part of the will by which he authorizes his executors to break up and sell the planting establishment, is relied on.
What effect is to follow the execution of a power, may be learned by considering the purpose for which the power was conferred. The effect to be allowed must conform to this purpose; for here, as in every other part of a will, the testator's intention must prevail.
Now, if the testator gave this power, with a view to enable the executors to increase the legacies of the sons, and to diminish those of the Kilkenny relations, he has not said so. If the conversion of the property into bonds, at interest, was a circumstance going to abate his affection for the Kilkenny friends, or strengthen that for the sons, he has not told us so; nor is there any thing in the nature of the thing itself, from which we can reasonably infer, that in consequence of it, his affections would have undergone this change.
The testator empowers the executors to sell before 1838, if they deem it advantageous. If his intention was to enable the executors to sell for the purpose of transferring the bulk of income to his sons -- if this was the sense in which he used the word, "advantageous," there was no need for an "if" in the case. He might have saved himself the trouble of conferring the discretionary power, and exercised it himself, by ordering a sale presently, for, without doubt, such a transfer would be advantageous to the sons.
Why did he not order present distribution? Plainly, because he wished to accumulate income for those to whom he gave it. He thought that a planting estate, when he made his will, would produce as much income as its value, at interest. But he was uncertain whether this would continue to be the case. Executors might not be able to manage as well as an owner; produce might fall, or seasons change, or lands fail. All this would reduce the income, to the injury of those entitled to it. In such a conjuncture, it would be advantageous to them to have the capital changed, and put at interest. But it might happen, that at such time, property was laboring under an unusual, though temporary, depression in price. To sell, would injure those entitled to the corpus. To meet all contingencies, the executors were clothed with a discretion. But their power was a trust. They were trustees for all the legatees; not for any one in particular; much less for one against another. They must act for the advantage of all, or so as to inflict the least possible injury on any.
The executors have executed this power; and it is not doubted they have executed it in good faith. But if it would have been bad faith in them to sell for the avowed purpose of transferring the income -- or for the express purpose of revoking the legacies to the Kilkenny relations; if the doing these things was not the purpose for which the power was conferred on them; -- is that a sound construction which would give their act that effect? Can that be a true interpretation, which says that a trust for relieving against a too scanty income, shall, if executed, have the effect of extinguishing the income?
It is said the income intended for the Kilkenny relations, was income from planting. The testator is supposed to have given them income -- so long as it arose from planting but no longer. Now, if he had said so, from the most whimsical motives, or from no motive at all -- if he had said so plainly, his discretion must have governed. But he has said no such thing. What he has said, is, that he gives the income of his estate. He makes no qualification. His words will take in profits from all sources, without regard to the quality of the capital. If an estate, when sold, ceases to produce income, the argument is good. If this estate, now, has no income, there is no right in the Kilkenny relations to have any. But if there is, their claim is good.
I would not do injustice to the point made. The zeal with which the argument was urged, evinced that it was grounded on a conviction of its correctness. I have, therefore, cast about in every direction for any thing to support it; but in vain.
The argument proceeds upon this: -- that the testator having, by the second clause, provided for keeping his estate together for planting, has exclusive reference to this state of things, in all the legacies of income which he creates in the four succeeding clauses. That, therefore, the income intended to give, was income from planting. That the power given to the executors, in the seventh clause, to sell the planting establishment, was a power to destroy the income given, by destroying that from which alone it could accrue.
The testator no where says that he gave the income, on the supposition that it was to come exclusively from planting. If this was his meaning, we can come at it only by implication. But it would be against rule to resort to implication, when it would have the effect of revoking or restricting the import of an express bequest; to do so would amount to nothing less than preferring a conjectural intent to his express declaration.
But if we may resort to implication, let it be borne in mind, that it is still the testator's real intention we are to inquire after. The argument undertakes to prove that the testator did not intend that the words, "income of my estate" should have their natural meaning -- and that it was his intention that the legatees should not have "income of his estate," unless it arose in a particular way.
The suggestion of the possible existence of a capricious or unreasonable motive, is no ground for implication. Then can any one assign a sensible reason (and shall we, without reason, imply an intention contrary to the testator's expression,) why the testator should have been willing that his Irish friends should have the income of his estate, if the estate was planted, but unwilling they should have it, if the same property, with diminution of value, or injury to any one, was changed to another form; a change not disagreeable to him, since he expressly authorized it?
It is conceded, that if the estate had been planted until 1838, according to his favorite scheme, he intended the legatees to have the income. It is also conceded, that in that case, he intended his sons should have no more than a fourth of the corpus, in 1838.
Now, what is there in the will to shew an intention to give his sons more?
What is there in the will from which to imply (for, I repeat, there is no express declaration,) that a mere alteration of his estate changed his intention towards his legatees? That it worked a change in the relative degrees of affection he bore them before? That in giving his bounties, he had regard, not to the qualities of his legatees, or the benefits the bounties would confer on them, but to the qualities of the estate? Or that he loved first one and then another, by turns, just as his estate happened to be in this or that posture?
On the whole, I can make nothing of this argument, but that it asks the court to strive after an implication to defeat the plain import of the testator's words; and to conclude that an intent existed contrary to those words, upon the unauthorized supposition, that he was governed by motives so capricious as to be almost incompatible with a disposing capacity.
I am persuaded there is nothing in the mere selling of the property to render it inconsistent with the testator's intention, that the legatees of income should continue to take the profits of the estate after the sale.
The expression, "if any," in the sixth clause, has been relied on to shew that the testator contemplated the cessation of income before 1838. But it is obvious he did not employ these words to express a doubt, whether the income would continue, but whether, after paying the bequests charged on it, there would be any balance. That balance, "if any," he bequeathed by the sixth clause.
There is another provision, however, which has been supposed to be inconsistent with a right to income after a sale.
The testator gave the executors power to sell before 1838, and directed them to divide "the proceeds" into four equal parts. It is argued that, upon the sale, the will vested distributary rights in "the proceeds," as a specific body of property; and that a right sprang up to have instant distribution; which would defeat any claim to have it retained to raise income for the legatees of income.
It may be conceded, that distributary rights vested in "the proceeds," so soon as they came into existence. The mistake seems to be in concluding that this fixes a time for distribution. If there is nothing declaring that distribution shall take place instantly, the mere existence of a distributary right is by no means inconsistent with a right to have the property retained, that its profits may, in the mean time, be paid to others. Nothing is more common that the creating vested, and transmissable, distributary, interests in property, and at the same delaying the distribution for the purpose of giving the intermediate profits to others. If this could be doubted, the case of a transfer of stock to A, in trust, to pay the dividends for a term to B, with remainder over to C and D, discharged of all trusts, might be given as an example. That is this very case.
It was competent for this testator to have directed, if he so intended, that the distribution should take place on the sale. But he has not done so. Nor has he given the executors any power to fix a time for distribution. Their power was to select a time for sale, only. We are not to infer that the testator intended the distribution to attend the sale, when such construction is not only unnecessary, but would, in the contingencies which have happened, revoke legacies plainly given, and swell others beyond the obvious general intent of the testator. This construction would allow his executors to make his will this or that, not according to his intention, but their pleasure.
An expression in the codicil, whereby the testator requires the two thousand dollars, which by the will was to be vested for the support of Nelson, to be paid to his Kilkenny friends, "at the time of the sale, or division of his estate, as in his will directed." has been relied on, as evidence, that he intended the sale and distribution to be cotemporaneous. And no doubt the sale he here speaks of was expected by him to be cotemporaneous with the distribution. The sale he speaks of was the one he directed in his will. There is no direction, though there is a permission, for any sale before 1838. The legacy in the codicil is a substitute for the investment which the will ordered to be made for Nelson; which investment was to be made in 1838, and not before, and was to depend on her being "then" alive. Is not this evidence that he intended this legacy to be paid in 1838.
The only remaining objection to the construction I have given this will, on which I shall remark, is, that it contravenes that equality at which the testator aimed. But how does it appear that he did aim at equality? If equality was his object, he would have divided the corpus equally, or left the profits to pursue the capital. He has done neither. He divides the capital unequally; to some he gives capital, but no income; to others, income without capital; and to nearly all unequal portions of income.
The motion is granted; and it is decreed, that distribution of the capital of the estate be made in 1838, and not before; and that, in the mean time, the profits go to the legatees of income.
We concur, Wm. HARPER, H. W. DESAUSSURE.
PETIGRU and GLOVER, for motion.
PATTERSON and BELLINGER, contra.
Filed 14th March, 1837.
"Reports of cases argued and determined in the Court of Appeals of South Carolina, on appeal from the Courts of Equity, containing the decisions from December 1837 to May 1838, inclusive" by C.W. Dudley, State Reporter; ("Dudley's Equity Reports"), pgs.161 to 174 (California State Law Library, Sacramento, 1/2004)
H. D. DUNCAN, Executor of TOBIN, v. DANIEL TOBIN, et al.; in Chancery; Court of Appeals of South Carolina, Charleston; Dud. Eq. 161; February term 1838.
(MAD: Headnotes not included here)
Before his Honor Chancellor JOHNSTON, at Barnwell, January 1838.
His Honor pronounced the following decree:
This case is now before the Court, on an application of the commissioner for directions.
On the argument of the questions submitted, it has been agreed to withdraw those which relate to the mode of charging the executor; and leave the report, (when it shall be made up,) to be excepted to by the parties; so as to bring up the questions, not in general terms, but in the form of specific objections.
The only question left for me to consider, is, what funds are (as between the legatees) liable for the payment of debts, and in what proportions?
The question is not raised by creditors; and they are in no wise concerned in it. As to them, the whole, and every part of the estate, is liable; and if they have taken satisfaction out of an inappropriate fund, still, as among the legatees, the irregularity must be cured, by directing remuneration to be made to the legatees injured by it, by the legatee who should have been charged with the debts.
The same remark is applicable to the executor; if he has in good faith, paid out of the wrong fund, the legatee, prejudiced thereby, must be recompensed for his loss, out of the legacies which should have been charged, and employed by the executor.
The question is one entirely between the legatees. In forming a judgment upon it, the clearer method will be to reject from the consideration all the events which have taken place since the estate first came into the hands of the executor; and taking his position at that time, and contemplating the condition of the estate, and the provisions of the will, enquire how, and out of what funds, shall the debts be paid.
When there are no specific directions in the will, the rule, I suppose, is, that the least favored of the legatees shall abate, rather than those most favored. For instance, residuary legacies shall abate in favor of prior bequests; and general legacies in favor of specific. If all are equally the object of the testator's bounty, all shall bear the burden of his debts pro rata.
All for whom the testator intended a bounty, ought, if possible, to have it; and such construction should be given to the will as not to deprive them of it, but to give it to them, substantially; unless this cannot be done without taking from others what the will shews the testator intended they should have, even if that should occasion these to lose what is given to them.
In this will, the direction is, that, from the testator's death until 1838, the income of the estate should be given to certain legatees, and that in that year, the body of the estate be sold, and the proceeds, together with any property unbequeathed, divided among persons named by the testator.
There is no residuary legacy here, unless there was property not specifically bequeathed; and it is understood there was no such property.
If there had been, that, so far as it would extend, should, in the absence of any express direction, be first liable for debts.
I apprehend it would be in vain to look to this will for any index of greater favor, in the mind of the testator towards those to whom he gave the proceeds of his property, than towards those to whom he gave the income of it. The legacies to each class, as a class, are general. To one class is given all the income, whatever it may be; to the other, the proceeds of sales, whatever they may be. The legacies are, therefore, of the same rank. They are general pecuniary legacies, dependent for their amount upon that out of which the money is to be raised. I speak of them as classes. Among the legacies of income, there are some for specific sums, which must, as among themselves, be preferred to the rest, to whom only the balance of income is given. But comparing the legacies of income as a class, with those to whom the proceeds of the body of the estate are given, they rank alike. If there is any mark of preference of one class over the other, it would rather seem to be in favor of the legacies of income, since the testator seems to have postponed the distribution of the corpus, with the sole intent of raising income in the meantime, for the benefit of those to whom he gave it. This appears very much like a declaration to the legatees of the corpus, that they should not have it until others should be first allowed bounties bequeathed to them. But I suppose the legatees of both classes must, as classes, be regarded as equally favored, their legacies being of equal rank; that is, each equally entitled to have, substantially, the bounty intended for it.
When this case was before the Court of Appeals, on a former occasion, the construction given to the will was, that the executor was so to conduct the estate, as not to advance one of these classes at the expense of the other. The principle of the decision was, that all were equally entitled to what was given them, and that neither class was to be defeated by the act of the executor, in selling before 1838. The same principle must, I think, lead to the same decision in respect to the payment of debts.
The debts were due at the death of the testator, and were then payable; although the law allowed a certain time for the executor to ascertain their amount and grade, and to marshal and arrange the property to meet them. As the testator has not charged them on any specific fund, and as there was no undisposed of property to pay them, the consequence seems to be, that they should have been paid out of the body of the property, as it stood at the testator's death; with this exception, that as the testator is understood to have died after the first of March, the growing crop must, under the act, be first applied.
With this exception, the body of the estate was the primary fund. The first duty of the executor, before proceeding to execute the other duties pointed out in the will, was to pay the debts. Until this was done, the estate which he was to subject to the other provisions of the will, could not be ascertained. Substantially, so much of the property as was necessary to satisfy the creditors, was not the testator's estate. That estate, in justice, was only the balance of property left after paying off all the claims on the testator. If, therefore, the executor had taken the natural course, he would have ascertained the amount of debts, (principal and interest,) as they stood at the testator's death; and after applying the growing crop, have paid the balance by sale of property. He would have then proceeded to plant with the residue of the property, applying its income, as directed, until 1838, at which time he would have sold and distributed the corpus, according to the directions of the will.
He could not delay the payment of the debts for the purpose of making income, to make payment out of that. This would have amounted to what, in the former decision in this case, the Court has said he should not do; preferring one set of legatees over another.
It is presumable, however, that all the debts were not paid at the end of the year. But at whatever time the payments were made, the accounts should have so stated as to have the same effect as if they had been made within the year. If any were paid afterwards, the amount due on them at the testator's death should be deducted from the capital of the estate; and the interest which accrued after the testator's death, should be deducted from the income of the estate; the balance of the capital should be distributed to the legatees of capital, and the balance of income should be distributed to the legatees of income, according to their grade, among themselves; the specific annuitants first, the general annuitants last.
The true construction of the will, and that which exhibits the relative favor of the testator to his different legatees, seems to be this: that after ascertaining what his estate really was, by payment of debts, he wished the body of that estate to be enjoyed by certain individuals, but that it should not pass into their hands until a specific time; designing that the income of that which he gave them, should in the meantime be enjoyed by others. The benefits were given in the ratio of interest to capital. If diminished by debts, the diminution to the parties respectively should be in the same ratio. If there had been no debts, his legacies themselves bear evidence, that his bounties should bear their proportion of principal to interest. That principle should be preserved. The debts should not be allowed to disturb it; but should be paid so as to leave it in full operation as to the balance left.
The rule which applies, where property is given to one for life, with remainder over, is founded on the same principle.
The debts of the donor are charged on the life tenant, and remainderman, in proportion to their respective interests in the property given. Such portion of it, as is necessary, is subjected to the debts, the residue is left subject to the terms of the gift. -- Whoever would think, in such cases, of disposing of the income or profits of property, during the life tenancy alone, thus frustrating the interests of the life tenant, and leaving the remainderman the full enjoyment of his? So, here, the income, for the time specified, is, as regards those to whom it is given, as if the property had been leased to them for that time.
The cases in which debts are payable out of income alone, have no application. I refer to cases of trustees, where the cestui que trust is entitled to both capital and income, such as guardians, &c. The income is the extent of the trustee's power. He must employ that for the preservation of the corpus of the property, which is legally the thing intrusted to him. The interest is but an equitable incident. But here the interest is no incident; it is given to persons different from those entitled to the capital, as a substantial bequest. In the one case, when the interest is employed, it is for the preservation of the capital, a thing as valuable to the ward; the gain to him in the one, is equal to the loss in the other. In the other case, to employ the income, is to sacrifice the interests of its own, not for his benefit, but for the benefit of other persons.
It has been supposed that although there is no charge of the debts on the income, in terms, there is enough in the two first clauses of the will to shew an intention they should be so charged. -- If the expressions employed by the testator, indicate such an intention, it is as good as if it had been set forth in terms. But I do not see such indication.
The first clause directs: 1st. The debts to be paid as soon as practicable. By itself, this certainly shews no particular intention, except that the debts be paid speedily, not slowly, out of income "as soon as practicable." The law gives the same directions; and renders it practicable "to pay the debts as soon as a sale for payment of the same can be made." The testator does not say "as soon as practicable, out of income."
The second clause directs "that the estate be kept together, and conducted as in my life time." It is argued, that as the testator was a prudent man, and paid his debts out of his income, those words should be construed into a direction to the executor to imitate him in that particular. But it is evident that the testator had no thought of making his own personal habits the measure of the executor's duty; but simply to direct, that as his was a planting estate, it should be kept in the same position; as he had kept and conducted it as a planter, so he wished the executor to do. That this was his meaning, is evident by what he allows the executor to do. If he prefer it, he allows him to hire out the negroes, and sell the perishable property; that is, to break up the planting establishment, sell the ploughs, &c. and hire out the slaves. But that he meant that the executor should follow his own habits, and make them the measure of his duties, appears to me preposterous.
To pay debts in the same way as he did! If this was his meaning, it is not half so apparent as another meaning which might be attached to the words. His words are, "that the estate should be conducted as in his life time." And if these refer to the testator's habits as a standard of duty for the executor, the latter is excusable, if he comes up to the pattern. Now, suppose the testator had been an idle and improvident planter or manager, would that be an excuse for the executor to conduct the estate in the same way On the other hand, if the testator was an uncommonly good and thrifty manager, so that few, if any, could come up to him, must the executor be condemned, if after using ordinary diligence, he failed?
A motion was made to reverse the decision of the Chancellor as above set forth:
1st. Because, according to the true construction of the will, the testator intended his debts to be paid out of the income or profits of the estate.
2nd. Because, even if the testator had expressed no intention, as to the particular fund out of which his debts are to be paid, the income, or profits, (if adequate,) are the natural and obvious fund for that purpose.
PATTERSON & BELLINGER, for appellants.
COPY OF THE WILL.
State of South Carolina:
I, Cornelius Tobin, of Barnwell, in the State aforesaid, do make my last will and testament, in manner and form following: hereby revoking all wills and testaments by me heretofore made.
1st. I desire that my debts be paid as soon as practicable after my death.
2nd. If my executors shall find it judicious and proper, I would prefer that my estate be kept together, and conducted as in my life time, until January one thousand eight hundred and thirty eight; or if they prefer it, that the negroes be hired out, the perishable property be sold, &c.
3d. From the nett annual income of my estate, I desire that four hundred dollars, if so much be necessary, be applied yearly, and every year, for the support and education of my natural son, Cornelius, the child of Elizabeth Neilson, until eighteen hundred and thirty-eight; and I enjoin it on my executors as the most solemn request I can make, that every care and attention be devoted to his education, both academical and collegiate.
4th. To Orsamus D. Allen, I give and bequeath the sum of one hundred and forty dollars per annum, so long as Elizabeth Neilson shall live, in trust, for the sole and separate use, benefit and support of said Elizabeth Neilson, free and discharged from all debts, contracts or control, of John Neilson, her present husband, and from the contracts or claims of any future husband. The aforesaid sum of one hundred and forty dollars, to be paid from the nett annual income of my estate, until the year one thousand eight hundred and thirty-eight; and should the said Elizabeth Neilson be then alive, I direct that from the sales of my estate, which I shall hereinafter direct, that a sum of money, sufficient to raise the aforesaid sum of one hundred and forty dollars be invested in bank stock of the government, or in such other public or private securities as my executors may select, in order to raise and pay the annuity aforesaid, during the life of said Elizabeth Neilson; and at her death, I give and devise the fund so invested, to my sister Mary, my half brother Michael, and half sister Caty, (or their children, as the case may be, if they, or either of them, be now dead, or shall die before me,) in the same manner, and upon the same terms, and under the same contingencies, as are herein after expressed, concerning one fourth part of my estate, which I shall bequeath to them.
5th. From the annual nett income of my estate, I further give and bequeath the sum of one thousand dollars, to be paid as soon as possible, on account of her advanced age, to my aunt Mary Dugee, of the county of Kilkenny, in Ireland, who was, when I last heard from her, the widow of Daniel Dugee of said county. But should my said aunt be now dead, or should she die before me, then I give the aforesaid sum of one thousand dollars, payable in the year one thousand eight hundred and thirty-eight, to be divided between such children, and grand children as she may leave alive at her death; to be so divided among them, that the child or children, of any one of her children so dying before her, will take a share equal with one of her children.
6th. The balance of the nett annual income of my estate, if any, I give and devise to my sister Mary, and to my half brother Michael and half sister Caty, to be divided between them, or their children, in the same manner as is provided for the distribution of that fourth part of my estate, which I shall herein after bequeath to them.
7th. Although I have expressed a wish that my real and personal estate be kept together until 1838, it is not my intention that such wish be imperative on my executors, leaving it to their discretion, to sell the whole sooner if they think it most advantageous, on a long credit, the payment secured as I shall presently direct. If not sold sooner, I direct that my whole estate, real and personal, be sold in the month of January, one thousand eight hundred and thirty-eight, on a credit, payable in instalments of at least one, two and three years, the purchase money to be secured by bond and mortgage, with personal security.
8th. The proceeds of the sales of my estate, and all the residue of which I have not made a devise or bequest, I give and devise as follows, viz: To my son, Daniel Tobin, and to his heirs, I give one-fourth part thereof. To my son, John Tobin, and to his heirs, I give another fourth part. One fourth part of the same, I direct to be invested in lands, negroes, bank or government stock, or loaned out on good mortgages, and personal security, at the discretion of my executors. And that fourth part I give to my executors hereinafter named, and to the survivor, or survivors of them, and to their heirs, executors, or administrators, of such survivor, in trust, for the use, benefit and support of my natural son, Cornelius Tobin, and his children, during his natural life; and after his death, I give and bequeath the same to such child, or children as he may leave alive at his death, to them and their heirs. But if the said Cornelius shall die leaving no child, children or grand children alive at his death, then I give and bequeath the said fourth part of my estate, consist of what it may, to my sister Mary, half brother Michael, and half sister Caty, to be divided between them, or their children, (upon the contingencies provided for in the next clause) in the same manner, and on the same conditions, which are therein expressed, concerning the other fourth part of my estate bequeathed to them.
The other remaining fourth part of my estate, I give and bequeath to my sister Mary, (nor, or late widow of James Murphy, of the county of Kilkenny, in Ireland,) my half sister Caty, and my half brother Michael, also of Kilkenny, to be divided between them, as follows: That is to say, one half of that fourth, I direct to be equally divided between Caty and Michael. But as it is long since I heard from those friends, and I know not if they, or either of them be alive, in order, therefore, to provide against their death, I do further declare, that if either of them be now dead, or shall die before me, that I give the proportion, or share, to which my brother or sisters may be, or would be entitled to, under this will, if alive at my death, to such child, or children, as he or she may have at his or her death, and to their grand children, in such manner that the child, or children, of my nephews, or nieces, who may die before me, or be now dead, will take the same share its father or mother would have taken if alive at my death.
9th. Having some years ago divided my estate equally with my sons, John and Daniel, reserving to myself only so much as I gave to them severally, I feel justified in the bequests and legacies I have herein given to others. For the same reason, I do declare, that should either, or both of my said sons, directly, or indirectly, contest or dispute the validity of this will, on any account whatever, by instituting proceedings in any court of this State, for the purposes of frustrating or defeating the legacies herein given; or if they shall, by any act of theirs, or their agents, intermeddle with my estate, by assuming authority, or ownership over the same; or by taking or carrying off any of the negroes or other personal property of the estate then, and in that case, I do solemnly revoke all bequests herein made to them, or to the one so offending against my wishes; and the proportion so given and revoked, together with any excess which any court of competent jurisdiction may declare, that my natural son, Cornelius and Elizabeth Neilson, cannot take under this will, I give and bequeath to my sisters, Mary and Caty, and brother Michael, to be divided between them, or their children, if they, or either of them be now dead, or shall die before me, in the same manner, and under the same conditions, that I have expressed concerning that fourth given to them by a former part of this my will.
Lastly. I nominate and appoint my friends, Darling Peoples, Hansford D. Duncan, and Reuben Thomas, executors of this will, and recommend to them the employment of David Hair, as a fit and proper person, as overseer and manager of my plantation affairs -- his continuance must, however, of course, depend on their opinion of his worth and good conduct.
In testimony whereof, I have set my hand and seal, at the end hereof, the 7th of August, in the year of our Lord one thousand eight hundred and twenty-nine; and have also written my name at the bottom of each page of this my will, consisting of one sheet and a half of paper.
C. TOBIN, [L. S.]
Signed, sealed, and published by the testator, as his last will, in the presence of us, who, in his presence, at his request, and in the presence of each other, have witnessed the execution thereof.
State of South Carolina, Barnwell District:
I, Cornelius Tobin, in consequence of the death of Elizabeth Neilson, do make, as a codicil to the foregoing will, the following bequest: that is to say, I give to my sister Mary, (mentioned heretofore in my will,) the sum of one thousand dollars, and to my half brother Michael, and my half sister Caty, I give each the sum of five hundred dollars, to be paid to them severally at the time of the sale or division of my estate, as in my will directed. And if my sister Mary, or half sister Caty, or half brother Michael, be now dead, (or shall die before me) leaving children, or grand children, then I direct that the money here given to them severally, be divided among their children or grand children, in the same manner as I have directed a division of the fourth part of my estate, given to them, in the event of any one of them being now dead, or dying before me, leaving a child, children, or grand children.
In witness whereof, I do hereunto set my hand and seal, this 24th September, 1830.
CORNELIUS TOBIN, [L. S.]
Sealed and signed by the testator, as a part of his will, in presence of us, who, in his presence, and in the presence of each other, witnessed the execution thereof.
RICHARD A. GANTT.
JOHNSON, Ch. On reviewing the decree of the Circuit Court, we are entirely satisfied with the general course of reasoning of the Chancellor, and the conclusion to which he came; and a general affirmation of the decree thereof, is all that our duty would seem to require. But the zeal with which the counsel have prosecuted the appeal, has induced me to attempt to put the argument in a different form, with a view to meet some of the arguments which have been urged in its support.
The grounds on which the appellants rely, are:
1st. That it is apparent from the will itself that the testator intended his debts should be paid out of the income of the estate.
2nd. That in the absence of such intention, the income is the legitimate and appropriate fund for the payment of debts.
Without intending to enter upon a minute analysis of all the provisions of the will, it may be remarked without the apprehension of contradiction, that the income is not expressly charged with the payment of debts, and that any deduction from the general tenor of the will leading to that conclusion, is utterly inconsistent with the disposition made of that fund. Out of this fund the testator directs that an annuity of $400 shall be reserved for his natural son, Cornelius, and $140 for Elizabeth Neilson. That out of it $1000 should be paid to certain Irish relations, and that "the balance of the net annual income" should be paid to certain other relations. These are the primary dispositions of the will, and contain a positive and particular disposition of the whole income; and if they stood alone no one would be disposed to question that these legacies would not be bound to contribute to the payment of debts. But the testator has made a like disposition of the corpus of the whole estate, and the question is whether either of the funds are exclusively chargeable with the debts, or are bound to contribute towards them pro rata.
For the defendant it is insisted in the second position, that the income is the appropriate fund for the payment of debts, and that therefore the debts ought to be charged on this fund alone; and it is in general true that if there is no other disposition of it, it ought to be so applied. A prudent man would pay his debts out of his income, instead of breaking in upon his capital, and the same prudence ought to enter into the management of his estate by his executors. But the testator has the right to appropriate what fund he pleases to that purpose, and all these cases are resolved into that question. Out of what fund did the testator intend that his debts should be paid? If he makes only a partial disposition of his estate, the necessary inference is that he intended that his debts should be charged upon the undevised estate, for otherwise his will would be defeated; so if he gives particular or specific legacies to some, and the residue to others, the residue is charged with the payment of debts because the residue consists of what remains after the payment of the particular or specific legacies and debts, and wherever he has particularly and specifically disposed of his whole estate and no fund is left for the payment of debts, it follows that each legatee must contribute or abate in proportion to his legacy, for the obvious reason that there is no guide to the intention of the testator, unless it be that all should abate; and that is precisely this case; for as before remarked, this will contains as unequivocal a disposition of the income as it does of the corpus of the estate. The appeal is therefore dismissed, and the decree of the Circuit Court affirmed.
In anticipation of this result, the Court has been moved on the part of the appellants to instruct the Commissioner that the debts should be paid out of the annual crops, and the first instalment arising from the sales of the estate. This is an original motion which this Court cannot entertain, its jurisdiction being altogether appellate, nor will the Court anticipate that the Commissioner will decide the question unadvisedly.
"Cases in chancery, argued and determined in the Court of Appeals of South Carolina, Volume 1, from November, 1839, to May, 1840, both inclusive" by L. Cheves, Jr., State Reporter; ("Cheves Law and Equity Reports"), pgs.143 to 147 (California State Law Library, Sacramento, 1/2004)
H. D. DUNCAN, Executor, v. DANIEL TOBIN and others; Court of Appeals of South Carolina, Charleston; Chev. Eq. 143; February, 1840.
(MAD: headnotes not included here)
Heard, on the circuit, before the Hon. Ch. JOHNSON, in whose opinion, delivered in the Appeal Court, as below, the points made in the case are sufficiently set forth.
[Opinion] CURIA per JOHNSON, Ch. This bill was filed to settle the claims of the defendants, (the legatees,) under the will of complainant's testator; and, in the progress of the cause, the complainant was ordered to account for his administration of the estate. In stating the accounts, the Commissioner charged the claimant with the amount of sales, with interest upon in annually, and made up the annual balances by setting off the interest in the first place, against the annual disbursements of the current year. The complainant excepted to the report, on several grounds, and amongst others, "for that the complainant having passed his accounts with the estate annually before the Ordinary, he is only chargeable with the final balance due on such accounts and with the interest on the annual balance. The Circuit Court referred the accounts back to the Commissioner, with directions as to this exception, that if, as it assumes, the complainant can exhibit a regular account of the interest received, to charge him with it at the time it was received and carry it into the account current of the year. If not, that the account should be made up on the principle adopted in the report.
The defendants appeal from this order on the grounds:
1st. That there is no full and satisfactory return of interest; and, in the absence of this, the mode adopted by the Commissioner, is the proper and legal one.
2dly. Because the defendant can elect which mode he will adopt, and interest on annual balances has received the sanction of the Commissioner.
The whole of the testator's personal, and I believe some, or all of his real estate had been sold, and the complainant had taken bonds, or notes, from the purchasers, and in his annual returns to the Ordinary, he charged himself with the gross sum received, without distinguishing between what was received on account of principal and what on account of interest, so that it was impossible, without travelling through all the items and entering into minute calculation, to ascertain whether the interest account had been accurately stated; and this was rendered almost impracticable by the number and complexity of the accounts. This is the state of things to which the complainant's exception to the report of the Commissioner, and the grounds of this appeal refer, and but for the necessity of referring the accounts back to the Commissioner, on other grounds, I should not have subjected the defendants to further delay; but would, in this respect, have confirmed the report. The uncertainty, too, whether a correct mode of stating the account, which the solicitor for complainant thought practicable, would not result favorably for the defendants, was another motive, and I felt less reluctance, because, at the same time, a large proportion of what, under any circumstances, can remain due to the defendants, was decreed to be paid.
Parties interested in an estate have the right to know of what it consisted, and how it has been used and disposed of. For this purpose, executors are required, by law, to make an inventory of all goods, chattels, rights and credits of the deceased. If sales had been made, they are required to return an account thereof to the Ordinary; and, from year to year, to render to him an account of all their receipts and disbursements, which ought to exhibit the time when, the person to or from whom, and the account on which they were received or paid out, distinguishing between principal and interest; the correctness of which could be at once tested by a comparison with an inventory and account of sales. And the same particularity, for the same reasons, ought to be observed in accounting to this Court. The duties of one standing in the relation of executor or administrator, and the consequences of their neglect, are so clearly summed up in the well considered opinion of Mr. Justice Evans, in Dickson, administrator, vs. the heirs of Hunter, delivered in Columbia, at December term, 1836, that little remains to be said on the subject. "If," says he, "an administrator acts fairly -- if he renders his accounts according to law, to the Ordinary, and exhibits by his returns a full and satisfactory account of his transactions of the trust, shewing when the funds were received and how they were disbursed, and that they had not been suffered to remain in his hands unnecessarily and unproductive, he has done all that the law requires of him; but, if he has neglected to keep it, and is unable to render to full, fair and just account of his administration, he must be charged with interest on all the funds in his hands, including all that were, or might, with ordinary diligence have been rendered productive."
The account stated by the complainant falls very short of the particularity required by these principles, and although it may be possible to test their correctness by a reference to the account of sales, yet, from my own observation, such is the confusion in which they are involved, and their extent, that even a dexterous accountant who was a stranger to the circumstances, could not reduce them to order in a week, perhaps a month, and but for the reasons before stated, and the belief that it might subserve the purpose of justice, I should have sustained the Commissioner's report.
The complainant's exception to the Commissioner's report, before stated, seems to have been founded on a supposition that the complainant's returns to the Ordinary, were, in themselves, evidence on the reference before the Commissioner. They are prima facie evidence as to the receipts, for he can produce no other than that furnished by the inventory, the bill of sales, and the amount of monies received, which the opposite party would, of course, be entitled to surcharge and falsify; but, not so with regard to the disbursements; that is susceptible of other proof, and must be established and vouched according to the general rules of evidence.
The want of uniformity and frequent irregularity in the manner of stating and vouching accounts before the Commissioner, has suggested this, as a fit occasion to refer to some of the rules by which these matters are regulated.
According to the practice of the English courts, all parties accounting before the Master, are required to bring in their accounts in the form of debtor and creditor, accompanied by an affidavit containing a verification of the accuracy of the schedules in which are contained the details of the account; and, if any of the parties are dissatisfied with it, they may examine the accounting parties on interrogatories. If the party asking the account sets up a charge not admitted in the account, nor on the examination of the accounting party, he must substantiate it by evidence; when that is done, either by admissions or proof, the accounting party must discharge himself by the production of receipts, or other competent evidence (Smith's Practice, III, 2--3--4,) and proper attention to these rules would relieve the Court from much embarrassment in the examination of the accounts taken before the Commissioner.
The appeal must be dismissed; but, it may be proper to remark that, the order of the Circuit Court must be carried into effect, according to the principles before stated. If the complainant is able to exhibit a sworn account in such form as will enable the defendant readily to test its correctness by the inventory and account of sales, distinguishing between the sums received on account of principal and interest, then, and to that extent, the interest is to be set down to the account of the year in which it was received, and interest computed on the annual balance; if not, the account must be made up on the principles adopted in the report. It may happen that the complainant may be able, in some instances, to state the account fully, and not in others; in that event, the rules laid down, must be applied to their appropriate classes of the items in the account -- the first to those where the account is clearly and fully settled, and the last to such as are not made up in that manner.
DUNKIN, Ch., concurred.
Ch. JOHNSTON had left the Court before this opinion was prepared, and his signature does not, therefore, appear. He was understood, however, to concur.
GLOVER for the motion; PATTERSON, contra.
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