14 S.C. 251 | S.C. | 1880
The opinion of the court was delivered hy
These cases depending upon the same principles, were heard together on Circuit, and the appeals will be considered together here.
The conclusion of the Circuit judge, that the investments of the trust funds claimed to have been made.by the appellant, cannot be allowed, is so fully sustained by his reasoning that it
As to the appellant’s fourth exception to the decree of the Circuit judge, we think, the investments being disallowed, the best way to make up the accounts is to treat the notes claimed to have been set aside as investments as continuing to be the property of J. S. Moore & Sons, for all of which the survivors should account, in order to ascertain the interest of the testator therein, and that such interest so ascertained should be charged to the executor as part of the assets of the testator’s estate, and that any payments made to the legatees, whether such payments were made from collections on such notes, or from other sources, should be credited to the trustee in his accounts as such. The result will be that all money which may have been collected on these notes will be regarded as belonging to J. S. Moore & Sons, of which the testator’s estate would only be entitled to one-fonrth, and if the estate has already got the benefit of more than that
We are unable to discover any sufficient reason for overruling the finding of fact by the referee in regard to the credit of $1698.46, allowed the executor for the expense incurred in the support of Miss A. J. Springs up to the time she attained the age of eighteen years. It is true that the testimony upon this point is somewhat conflicting, but the referee, who had the witnesses before him, has reached the conclusion that the weight of the testimony was in favor of allowing the credit, and we think his conclusion should have been adopted, unless it was shown, as we do not think it has been, that his conclusion could not be sustained by the testimony. Dewitt v. AtKinson, 6 S. C. 140. The judgment of the Circuit Court is, in- this respect, reversed, and the report of the referee, as to this matter, is confirmed.
Appellant’s sixth exception cannot be sustained. The executor certainly undertook to dispose of the stock in question, and he has not accounted for the proceeds of it. He must, therefore, in the absence of any other proof as to its value, be charged with that fixed by the appraisers.
Upon the subject of the commissions claimed by the executor, there is no doubt that the Circuit judge was right in disallowing commissions on all receipts and disbursements prior to the adoption of the general statutes, upon the ground that the executor had failed to make annual returns, (Lay v. Lay, 10 S. C. 208,) but inasmuch as the act of 1789 was repealed by the general statutes, and the provisions enacted in lieu thereof do not contain a clause declaring that a failure to make annual returns shall work a forfeiture of the executor’s commission, it is clear that the executor is entitled to commissions on all his receipts and disbursements since the adoption of the general statutes; and it is equally clear that the executor should, under the case of Gee v. Hides, Rich. Eq. Gas. 5, -be allowed commissions on the final balance. In these respects, therefore, the judgment of the Circuit Court is modified so as to conform to these views.
The reasons assigned by the Circuit judge for a change of trustee are quite sufficient, and in this respect the decree below is affirmed.
The cases are remanded to the Circuit Court for such further proceedings as may be necessary or proper to carry Cut the views herein announced.