Uldrick v. Simpson

1 S.C. 283 | S.C. | 1870

The opinion of the Court was delivered by.

Willard, A. J.

Jane Y., wife of complainant» J. E. Uldrick, is entitled, under the will of her grandfather, John Baskin, to a legacy of. $600. Complainants have filed their bill against Simpson and McBride, executors of James S. Baskin, sole qualifying executor of John Baskin, for an account and payment of this legacy. The Circuit decree establishes the claim of complainants against the defendant, McBride, individually — the defendant, Simpson, having left the State, and not being brought in to answer the bill. The decree is based, principally, upon two matters of fact: First, that the defendants, Simpson and McBride, had sold certain real estate, belonging to the testator, to Dr. Yarbrough, and had taken his note therefor; that they made no effort to collect the note, and that it has become of doubtful value, if not wholly worthless; that this real estate, at the time of sale, constituted the only means of paying complainant’s legacy, the other assets of the estate of John Baskin having been distributed at the time the real estate was sold; second, that defendants had fully distributed the assets of their immediate testator, J. S. Baskin, without making provision for the payment of complainant’s demand.

The defendant, McBride, who alone answered, alleges that there is no sufficient proof of the sale of the land by the defendants; and, also, sets up> a want of authority in the defendants to make such a sale. The evidence on which the fact of sale depends is, indeed, slight, but is not overborne by any testimony tending to negate the fact of such sale. We find no ground for disturbing the conclusions of the Chancellor in this respect.

The objection that the defendants had no authority to sell the land, whatever may be its bearing on this case, cannot be made by the defendant, McBride, John Baskin, the original testator, gave, by his will, a power of sale, as to his land in question, to his executors, James S. Baskin and Dr. Yarbrough. The object of the power was to raise assets to satisfy the provisions of his will, among which was the pecuniary legacy to Jane Y. James S. Baskin qualified, but Yarbrough did not. The power of sale was not executed during the lifetime of James S. Baskin, and after his decease, his executors, the defendants, assumed, rightfully or wrongfully, to execute it. The result of this action was, that the lands passed into the possession of Dr. Yarbrough, and, at his decease, became encumbered with the claims of his creditors and representatives. If defendants are permitted to dispute the validity of this sale, complainant, Jane Y., might be left with an expensive and doubtful litigation, her only means of realizing the legacy of her grandfather, while there is no reason to doubt that a faithful execution of the will of John Baskin would have secured the payment of this legacy.

It is unimportant to inquire whether James S. Baskin or the defendants are primarily chargeable with the waste of the assets out of which the complainant’s legacy should have been paid, as, in either case, they held the means of satisfying the complainant’s demand, and were bound to do so. Having failed in the discharge of this duty, the defendant, McBride, cannot screen himself from the liability to account, as decreed by the Chancellor.

The decree must be affirmed, and the appeal dismissed.

Moses, C. J., concurred.