| Tenn. | Dec 15, 1859
delivered the opinion of the Court.
The complainants are the widow and only child of Austin M. Hamner, deceased, and file this bill for an account and
Austin M. died in November, 1849, and this bill was filed 26th July, 1854. The defendant was qualified, and the will proved shortly after the death. The widow dissented in due time.
The executor returned no inventory of the estate, nor did he make any settlement with the clerk of the County Court.
The bill claims a large amount, and after various decrees and reports, finally recovered $5,004.97, and both parties appealed. .
The loose dealings between the two brothers for a number of years, together with the singular provisions of the will, make the case very complicated and exceedingly difficult to arrive at, and adjust the rights of the parties with any degree of certainty. An approximation to justice is all that can be attained in such cases.
The brothers were particularly attached to, and had unlimited confidence in each other. Their dealings were of eight or ten years duration, and without the evidence of any writings between them to explain their character and extent.
It seems that A. M. Hamner, in 1842, or early in 1843, was reduced almost, if not quite, to a state of insolvency, by his connection with one McQuiddy in the rope and bagging business. In 1843, a very short time after the termination of the rope and bagging concern, he entered into the dry goods business in the town of Columbia, in connection with T. L. McGee, under the partnership name of “ McGee & Co.” This firm was continued until September, 1844, when he purchased the interest of McGee for less than the capital the latter had paid in, and thereby become owner of all the assets of the firm, except McGee’s own, and his brother’s and sister’s accounts. He also assumed the entire liabilities of the firm. This business he carried on alone until January, 1845, continuing his accounts with his customers in the books of McGee & Co., as if the firm was still existing. Whether any
“ Whereas, there are unsettled accounts and mutual claims of long standing between myself and my brother, Samuel A. Hamner, both in his own right, and as administrator, and next of kin of his son Wm. T., deceased, my former partner. And whereas, I have the most implicit confidence in the correctness and integrity of my said brother; and whereas, I am desirous that said accounts and claims between us should be settled by my brother Samuel A., inasmuch as our dealings are better known to, and understood by him, than they are, or could be by any other .person. Now, therefore, I will and desire that my brother Samuel A., as soon as may be convenient after my death, should take an account of all the matters and dealings between us, running back through several years, and ascertain the amount of my indebtedness to him; all of which will appear from his accounts, but more especially from my own books, and that of A. M. & W. T. Hamner; and that he appropriate so much of the means of my estate as may be sufficient to pay off and satisfy the said indebtedness which may be found against me in bis favor, both principal and interest.”
The executor 'having failed to make this settlement, so confidingly entrusted to him by his brother, for five .years after his appointment, he has been brought into a Court of Equity by this bill, where it must be done for the benefit of those interested in the estate. He claims in his answer, and it is shown by the books of McGee & Co., that in June, 1848, he paid to.
These items for loans and advancements to his brother, with the deductions for the current accounts of Samuel A. on the books, are perhaps set forth in the report correctly. And we see no sufficient objection to the amount of assets and disbursements, to authorize any further investigation as to them. And yet we are not able to affirm of the result arrived at in the final decree, whether it is correct or not. But we feel clear that the principle on which the account has been taken is wrong. This will make it necessary to recast it; but, perhaps this may be done upon the material already presented in the report. Of this, however, the parties will judge for themselves.
The account is taken upon the assumption that the partnership of A. M. & W. T. Hamner, still continued until the close of the business, by the sale to Polk & Green, in August, 1859, notwithstanding the sale of W. T., and his death early in 1857. There is no evidence that Samuel A. was ever connected with any part of the business, at any time, as a partner. We have not stopped to inquire what effect this error has had upon the interests of the parties to this suit, but it is certainly a wrong basis upon which to state the account. All we can do now is to settle the principles upon which the account must be taken, and leave the result to be worked out by the figures.
The money advanced by Samuel A. to his brother, at various times during the existence of the firm of McGee & Co., and after McGee retired, as well as the means furnished by him on the purchase of the drugs, in the notes on Littlefield, and in money, then, and after, must be regarded as loans, and not stock, as seems to have been held by the Chancellor. These must be the items of indebtedness referred to in the
It can hardly he presumed that his uncle, who was a physician, and a man of age and experience, would furnish all the capital, and give him half the profits. But it might have been so, on account of the aid he had, and expected to derive from his father Samuel A. Upon the whole, we see no better way to arrive at it, than to fix his part of the profits at $2,000, as claimed by the defendant in his answer, less the amount of his account upon the books, which is also shown in the report. This being settled, there will be no difficulty perhaps in adjusting the whole matter, by charging the defendant with ail the assets, deducting the disbursements in his administration, together with this last item, and that first stated, consisting of the money loaned with interest, as the will directs„ The
The executor cannot be allowed any thing for his services on account of his failure to do his duty in returning an inventory, malting settlements, &c.
The item claimed for board will not be allowed, as it is not saved by the will, and therefore excluded upon the principles before stated.
The case also presents a question of construction on the fourth clause of the will of A. M. Hamner. He gives the estate to his nephew, Samuel A. Hamner, upon the death of his daughter “ without issue.” This is void for remoteness, as it is upon an indefinite failure of issue. 1 Meig’s Dig., 972. So the Chancellor held.
A decree will be drawn in conformity with this opinion.