41 S.C. 457 | S.C. | 1894
The opinion of the court was delivered by
In view of the fact that, the
The testator, Etienne Poincignon, having duly made and executed his last will and testament, departed this life some time in the year 1873. By his will the testator, after sundry devises and special legacies, gave all the residue of his estate to his nephew, Julius Trouche, and his nieces, Marie Louise Buerliaus, Julie Jugnot, Caroline McNulty, Elodie Downey, and Priscilla Duval, to be divided equally between them, and appointed as his executors W. G. DeSaussure, Julius Trouche, F. T. Dowuey, and Lawrence Duval. The will was duly admitted to probate on the 15th of July, 1873, and on the same day all the persons uamed as executors duly qualified as such. On the 25th of November, 1874, the executors, having paid all the debts of the testator and the special legacies, and having made provision for the life estates and annuities created by the will, filed their account or return with the Judge of Probate, which was duly allowed as properly vouched, which account showed a balance against the executors of $5,299.31. From that time forward no other account or return was filed by the executors, or either of them. The several executors have all died, one after the other, as follows: Trouche in 1877, Duval in 1878, Downey in 1883, and DeSaussure in February, 1886.
In January, 1888, the present action was commenced by Marie L. Buerhaus, who had taken out letters of administration de bonis non, with the will annexed, upon the estate of the testator, Poincignon, for the purpose of obtaining from the defendant, Martha G. DeSaussure, as executrix of the last will and testament of W. G. DeSaussure, the last surviving executor of Poincignon, an account of the assets of the estate of the said Poincignon, which came into his hands as executor as afore
And the case has been brought here upon exceptions to Judge Hudson’s decree, filed by the defendant, Martha G. DeSaussure, as executrix of W. G. DeSaussure, and as administratrix de bonis non, with the will annexed, of Julius Trouche; by G. M. Trenholm, as administrator de bonis non, with the will annexed, of Blodie C. Downey, and by Julie Jugnot, who was originally represented by the attorneys for the plaintiff, but who, when in the progress of the references it was found that her interests might conflict with those of the plaintiff, was subsequently represented by Mr. Northrop. It will not be necessary to set out these exceptions here, as they should be incorporated in the report of the case. Nor do we think it necessary, or even advisable, to consider the several exceptions seriatim; and we propose, therefore, to group the several exceptions into classes, as suggested by the subjects to which they relate.
The apparent inequality resulting from this, whereby some of the residuary legatees have enjoyed the use of the whole or portions of their shares for a longer period than others, is not due to any fault of those who received their shares, or portions thereof, in advance of the others, and is no invasion of the rights of such others; for when the fund became subject to division, each one of the residuary legatees, who were then all sui juris, as the Circuit Judge finds, had aright to demand and receive their full shares, and if some received more than others it was not their fault, but rather the fault, or at least the misfortune, of the others, which was in no wise attributable to those who had received more. If, however, any one or more of the residuary legatees has received more than his or her equal share of the funds for division, then to the extent of such excess such legatee has received money not belonging to him or her, as the case may be, and is bound to refund the same, with interest, to the executors or persons representing them; or, in this case, where all the parties are before the court, to those who have been underpaid, in order to avoid circuity of action. Inasmuch, however, as under the view which we shall take of other exceptions, it is altogether improbable that any of the residuary legatees will be found to have been overpaid, we need not dwell further upon this subject. These exceptions to the extent only as indicated above should be sustained, and the Circuit decree be modified accordingly.
These exceptions are, therefore, overruled.
It seems to us that the ruling of the Circuit Judge as to the proper mode of vouching the account of an executor is correct, aud is fully sustained by the case of Black v. Blakeley, 2 McCord Ch., 1, cited by him, as well as by the case of Wright v. Wright, 2 McCord Ch., 185. Indeed, we think that the case of Duncan v. Tobin, Cheves Eq., 143, relied on by the master, when properly understood, also supports the ruling of the Circuit Judge. Even in the passage quoted by the master from that case, it appears, clearly, that the production of a verified account by the accounting party does not dispense with the necessity for the production of vouchers to establish the disbursements claimed to have been made, as is shown by the concluding words of the passage quoted: “when that is
The misconception arises from confounding the two sides of the account. When an executor files a verified account, based upon his returns to the proper officer, in which he charges himself with the amount of the sale bill, for example, and with money collected on the choses in action belonging to his testator, that side of the account is to be taken as prima fade correct, subject, however, to attack by the party demanding the account, as incomplete or incorrect in certain specified particulars; but when he makes up the other side of the account, showing his disbursements, he must vouch each item by the production of receipts or other competent evidence of such disbursements. We agree, therefore, with the Circuit Judge in the view which he has taken; and we further agree with him that, after such a lapse of time, every reasonable indulgence should be extended to Mrs. DeSaussure in taking the account. See Lewis v. Price, 3 Rich. Eq., 172. The sixth exception must, therefore, be overruled.
• It is sought, however, to sustain these compromises by the large discretion conferred upon the executors by the terms of the will of their testator. The clause relied upon for this purpose reads as follows: “And I also empower them to compound for, compromise, and settle such debts as are due to me, upon the terms which, in their judgment, may be best for the interest of my estate.” It is contended that this language conferred upon the executors unlimited discretion in the compromise of debts due to their testator, and that the exercise of such discretion is beyond the control of a Court of Equity, and the case of Fronty v. Godard, Bail. Eq., 509, is cited to sustain that view. In that case the testator gave all of his property in Charleston
Looking at the present case in the light of these principles, the inquiries are: 1st. Whether the power conferred was unlimited, and if not, what is the limitation? 2d. What was the intention of the testator in creating the power? We think it clear that the power conferred was not an unlimited power to compromise any debt due to the testator, for the obvious reason that the testator has not said so, and the language which he used cannot be regarded as implying any such intention. On the contrary, the language used necessarily implies that he intended to invest his executors with power to compromise only such debts as in their judgment it might be best for the interests of his estate to compromise — that is to say, in order to
It is contended, however, that the simple fact that the executors made these compromises is sufficient to show that, in their judgment, it was best for the interests of the estate to compromise these debts, and that, in the absence of proof of fraud or bad faith, they must be sanctioned. We do not understand that any one imputes fraud or bad faith to these executors, or either of them, and we certainly make no such imputation. But assuming, as we readily do, that there was no fraud or bad faith, we cannot accept the view, that the mere fact that the compromises were made is sufficient to show that such compromises were, in the judgment of the executors, for the best interests of the estate, especially in the absence of any evidence tending to show that the interests of the estate were, in fact, promoted by such compromises, and in view of the fact that such evidence as has been introduced tends to show that the debts compromised were well secured by mortgages of real estate. Indeed, it seems to us, from a review of all the facts relating to this branch of the case, that the true view is, that the executors misconceived the scope and extent of the power conferred upon them, and supposing that they were invested with unlimited discretion, undertook to make these compromises rather than to enter into an unpleasant litigation with the church of which
The twenty-eighth and twenty-ninth exceptions have been practically.disposed of by what has already been said.
The judgment of this court is, that the judgment of the Circuit Court, except as modified herein, be affirmed, and that the case be remanded to that court for the purpose of carrying out the views herein announced.
There are a few other cases of November term, 1893, that were not decided in time to appear in this volume. They will be found in vol. 42. — Reporter.