12 S.C. 573 | S.C. | 1880
The opinion of the court was delivered by
In this ease we concur with the Circuit judge in the conclusions which he has reached. If an executor deliberately undertakes to depart from the instructions contained in the will which he has undertaken to execute, no matter what may be the motives which prompted him, he cannot -impose the loss which may ensue from such departure from his testator’s instructions upon innocent devisees or legatees. It is very clear from the report of the referee that the executor had in his hands at one time ample means for the payment of all the debts, and if he chose voluntarily to place those means beyond his reach, where they most probably would be. (and have been) appropriated to other uses, he has no equity to call upon the devisees and legatees, to replace those means and repair the loss which has been occasioned by his own misconduct, whether willful or not, in which they have in no wise participated. The defendant, M.
The question as to what was the share of Mrs. M. L. Good in the estate was probably not raised or but little attention bestowed upon it in the court below, as it does not appear to be discussed in the decree of the Circuit judge. We, however, see no error in the Circuit decision in this respect. The case does not belong to that class of cases in which the gift is to a class of persons, such as heirs, relations or next of kin, and it is necessary, in order to ascertain who' are the individuals embraced in such class, to resort to the statute of distributions. Here the gift is to wife and children, and in such a case no resort to the statute is necessary. It is the same thing, so far as this question is concerned, as if the testator had made the gift directly to his wife and children by name, iu which case it is clear that they would all take in equal shares, and not in the proportions prescribed by the statute.
The judgment of the Circuit Court is affirmed.
Appeal dismissed.
