12 Ky. 314 | Ky. Ct. App. | 1822
THIS is a bill filed by the devisees, who were also heirs of Robert Saunders, deceased, against his three executors, to'compel the settlement and . distribution of a large estate of the decedent. The court below dismissed the bill with costs ; from which decree the heirs and devisees aforesaid have appealed. The will was proved, and letters testamentary granted in 1805. By its directions, no final distribution was to he made till the youngest son came of age, which was about thirteen years. At the end of about fourteen years and one half, this bill was filed, there having been no previous settlement made of the executorial accounts, with the county court which granted the letters testamentary. Immediately on the service of process in this suit, the executors made an application to the county court for a settlement. Commissioners were accordingly appointed, who reported a separate settle, xnent with each executor, which was approved and re, corded. The executors then filed their answers, red
We shall consider the validity of the first of these objections to the report; for if that be with the appellants, it is clear that the decree cannot be sustained.
it is a settled doctrine in this court, first established in the case of Wooldridge’s heirs vs. Watkins’ executor, &c. 3 Bibb 349. and followed in many subse. quenl cases, that the settlement of accounts by an executor or administrator with the county court, may be used as evidence prima facie, in a contest with the lieirs or devisees, and this doctrine has also been applied to controversies with creditors. Burnes vs. Burton, 1 Mar. 349. And, indeed, the doctrine is reason, able; for it could not be reasonable to require the executor, both by oath and bond, to account with that pourt, and give it no efficacy in his favor, when rendered. Besides, if the rule was not indulged, executors and administrators could often obtain no kind of quietus, unless they were sued in a court of equity. But, however reasonable and proper this rule may be, itoughtnottobe universa!,and ought to besubject to exceptions. If it were not so,an executor or administrator who was artful and fraudulent, might, by such ex parle proceeding, obtain many unfair advantages, to the detriment and g”eat injury of the heir or distribu, tee, which could never thereafter be taken from him. In this case, the heirs or devisees had applied to a court of equity, which had competent and complete jurisdiction of the whole matter, and could settle, the ac. counts after hearing both parties, and where in the form of legal contro versy, with proper parties before it, interested to prove and disprove their respective claims, complete justice might be done. It is hard to
It follows, therefore, that the court below erred in giving any validity to this account, and that the defendants must be compelled to account, de novo, before that court. In taking this account, the inventory and appraisement, as it is not impeached, ought to be taken as the data, except so far as the prices of the articles therein contained which have been sold, are varied by the sale. To it likewise ought to he added, all moneys due to the decedent at his death, and collected by his executors, and all the profits of his estate since made, or which might, on using reasonable diligence, have been made, in cases where the executors, by culpable negligence, failed to make it profitable. Interest, sotaras it was received or the money was used, ougiit, likewise, to be charged against them. Some of the estate was to be specifically preserved, and considerable power over it is given to the executors by the will, which must be regarded in settling the account; and as the court below refused to go into the account, it is evident, that many questions must arise in its details, which cannot be reached by any decree or directions which this court can now give. On this, branch of the subject, however, some of tlio most ijin.
By the will, none of his slaves are directed to be sold. Some of them are specifically devised to his children. These were to be kept together, upon the farm, until his youngest son came óf age, together with another family of slaves, which were not to be hired at all. Gatewood, one of the executors, was requested by the will, to live upon the farm, and keep the children together, until the youngest son came of age. For the first year’s residence, he was to-receive two hundred and fifty dollars, “ as a compensation for his services and attention to his children, business and family; and for the succeeding years that-he might remain in the house, the executors might make such compensation. as they in their judgment, might think right and proper.” After the first, year expired, the remaining executors entered into a contract witli him, agreeing that he should still reside there until the youngest son came of age, for two hundred and fifty dollars annually, he to have the privilege of keeping one brood mare on the farm, but not to keep her colts there, after they were three years old ; and he was also allowed to feed and clothe his family with the proceeds of the farm, and still keep the children of the decedent. He continued in this contract accordingly, until the youngest son came of age. During this pe. riod, a large quantity of stock appears to have been on the place, as well as the slaves, belonging to the estate.
We conceive that, for this period, he ought to account for the profits actually made frpm the farm, after the sustenance of himself and family including the decedent’s children, and his wages, are deducted ; and the estate there at that period, ought to be accounted for, as well as the hire of the slaves directed by the will to be hired.
In settling the principles on which the estate is to be settled, one or two other questions occur, which have occupied the greatest part of this controversy. It is alleged that Saunders, at his death, possessed a slave named Sarah, and two children then living, and she, since that time, has had three more children, the hire of which the executors had failed to bring into the account, or to distribute the slaves theiriselves. Gate-wood sets up title to these slaves, as belonging to his
The admission of this record, as concluding the title, and precluding all inquiries into matters which previously existed, affecting the title, is objected to, and forms a question for the decision of this eourt.
Records of recoveries against executors by strangers, must he evidence against the heirs or devisees;
In cases where all the executors are not joined in actions by or against strangers, it may be matter of abatement only; and although the abatement may not
It is clear, therefore, that the verdict and judgment relied on in this case, proved nothing as to the right of the parties, it also clearly follows, that the deposition of Hutchinson, which was taken to be read as evidence on that trial at law, which was offered, objected to, and admitted on the hearing of this cause, ought to have been rejected as incompetent.
But it docs net follow from this decision, that Gate-wood cannot set up his original title, if he has one, and retain the slave. If Saunders owed him a debt, he might retain it. out of the assets which came, to his hands 5 and, for the same reason, he ought to be allowed to retain in his possession, as his own, any specific chattel held by Saunders, which came to hispos. session as executor,‘and which he might have recovered in ah action of detinue, but could not, because his becoming executor extinguished his cause of action.
This leads us back to determine the merits of his title on the remaining proof offered in its support.
It is very evident from, the proof, that Valentine L. "Wharton was the undertaker of, and chief mechan ic in building the bouse 'of Saunders, and "that he also kept a tavern for Saunders, on hiré¡. From the relation existing between the parties, it can hardly be said, that ihe parties kept any regular account against each other, or that they measured their dealings, as in ordinary cases, by dollars and cents ; but it was, no doubt, understood between them, that remuneration should bo made, without nice calculation for any articles sold or services rendered by one to the other. It is attempted to be shown, that Saunders furnished money to bring Wharton to this country; but this chiefly rests upon the-declarations of Saunders, which were frequent ly inconsistent with each other, and are not
It is natural that V. L. Wharton should desire to furnish Fanny with a slave,, as he had done to his other children. Hence, the subject appears to have been spoken of in the family of Saunders, before the death of Wharton. It seems also clear, that Benjamin Wharton, the administrator of Valentine L. Wharton, did claim an account against Saunders, after the death of Wharton, which Saunders did not controvert, but silenced it by promising the negro to Fanny Wharton, for whose benefit the account, when established, was to operate- This satisfied the administrator and all concerned. We have not, therefore, thought it necessary to enquire into what operation the doctrines of the law relative to gifts, where the donee had or had not possession, has upon this case; for we consider if as a contract on the part of Saunders, based ón a valuable consideration ; to wit, the extinguishment of the claims against him in favor of FannyWharton’s father’s estate, to furnish her with the negro. We do not, however, conceive that the proof, makes out an executed contract, but only an executory agreement as to the possession. ’ The testimony of Benjamin Wharton, with whom, as administrator,’as well as Fanny, the legatee, it was máde, goes to prove the original transaction, and is as strong and explicit as that of any other witness, and indeed inore so ; for others, for fhe most part, detail partial acknowledgments, when there was no motive to detail the whole ; and sometimes, disclose the vanity of Saunders in hours' of intoxication, in endeavoring to represent the transaction as a,gift to Fanny, rather than the discharge of a debt or duty resulting from the bequest of her father. He states clearly, that the engagement of Saunders was, (< that when Fanny married or left his house, §arah should be her’s.” In like manner, when Faviny
Another question presented, is a horse, which was likcwise recovered by Gatewood in the action of detinue, the record of which we have rejected. The record can give him no right thereto. But oil this point we deem the proof clear, that the horse'was bought and owned by Valentine L. Wharton ; that Saunders received compensation for raising him ; that he is the same devised to Fanny Wharton in the will of her fan ther ; that he remained with Saunders, as herss, until Saunders sold him. Bis estate ought, therefore, .ta account for the value of him when sold,
. On examining the testimony, it is evident that two ©f the children of Sarah were born at the death of Saunders, and the presumption is strongs that one at least was born at the marriage of Gatewood. The question.' therefore, presents itself, is Gatewood entitled to the increásé of Sarah, bon» before Saunders was to deliver her, or to that born afterwards and before Gatewood obtained the possession, inasmuch as his title was founded op an executory contract, which could have been, but was not sooner enforced by any appropriate action ? ' ' ‘ •
It is clear, that the contract was complete, except the possession, and thai was delayed because Fanny Wharton had nqt then the need of the exclusive and separate use of the slave. Saunders had received the consideration, and the slave was specifically designated aiid set apart, to discharge the agreem'eiit. The title of the slave must, therefore, have passed to Fanny‘át the time the slave was set apart by'Saunders and agreed to be taken by her and the administrator of V, L. Wharton ; for it is a settled role of the common law, and must apply in every case where statutory provisions do not control it, that as soon as a bargain is struck', in relation to a purchase and sale in-' tended to be closed at that moment, the property of the goods is transferred to the vendee, and that of the price to the vendor — 2 Black. Com. 448. If this rule applies where the consideration is not paid, but only agreed to be paid, it ought to embrace this case, where
The decree, however, must, for the previous reasons assigned, be reversed with costs, and the cause re. inanded, that a proper account may he taken, and such decree rendered as equity may require.