5 Fla. 542 | Fla. | 1854
delivered the opinion of the Court.
This case was brought up by appeal from the Circuit Court of Jackson County, taken pursuant to the provision of the Sd section of the act of the last session of our General Assembly, (see Pamplet Laws, 101,) and the first question presented for our consideration, is whether the legacy to Elizabeth Washington McKinnie, under the will of Barney McKinnie, was as to the personalty a vested legacy; and we think it was, and that at her death it passed to Bichard McKinnie, as her sole heir and distributee. The words of the will are : “It is my will and desire that my property, including lands, tenements, negroes, horses, and stock of every kind, and everything of value that I may die seized and possessed of, shall be equally divided between my wife,- Elizabeth McKinnie, my daughter, Elizbeth Washington, and my son Bichard.” This clause5 standing alone and by itself, it is admitted by the learned counsel who argued the cause for the appellant, imports a present gift; but they contended, with great zeal and ability, that it is controlled by the next clause, in which the
Richard McKinnie was therefore entitled to all the real estate of which Barney McKinnie died seized and possessed, one third in his own right, one third as heir, of his sister, Elizbeth Washington, who died soon after her father, and one third as heir of his mother, who died in 1837. He was also entitled to two thirds of all the personal property left by Barney McKinnie; one third in his own right, and one' third as heir and distributee of 'his said sister. Andrew Young took one third only of the personal property in right of hi¡3 wife, the widow of Barney McKinnie; and so much of this one third as he had in his possession, he by his last will and testament, directed to be returned to Richard Mc-Kinnie. By-the first clause, he directed that all his debts and funeral expenses should be paid as soon after his decease as possible, out of the first moneys that should come into the hands of his executors, out of any portion of his estate, real or personal. The second clause is as follows, vizs ‘‘Also, I direct that all tbe property, real or personal, that I obtained from the estate of Barney McKinnie, deceased, be returned to Richard McKinnie, minor heir of Barney KcKinnie, deceased, or suoh portion thereof as I now have in my possession.” He had previously sold all the real estate, and all the personal property except the negroes. These’were in his possession at tbe date of his will and at the time of his death, and one third of these, which he had received in right of his wife, is, we think, all that he by his will bequeathed to Richard McKinnie. It appears from evidence in the record, (evidence dehors_the will,) that Mr.Young supposed that he was entitled, in right of his wife, to
Again, it has bepn insisted by the counsel of the appellant that “Young’s bequest to Richard McKinnie is so con? nected with the decrees of the County Court, that if he takes under the will, he takes under the decrees, and hence he is,estopped, until he-renounces his legacy, from alleging that the decrees are void.” However this may be, he is not, we think, estopped from saying that they are erroneous, at least so far as they undertook to pronounce upon the extent of his interest; but if he takes under the sales made pursuant to the orders of the County Court, he may be estopped from saying that the sales are void, because the County Court had no power to make the orders under which the sales took place. By receiving so much of the proceeds of the sales as properly belong to him, he af? firms the sales; but we do not perceive how by this he affirms anything more, or is prevented from contesting that portion of the decrees of the County Court which declared that-'Young was entitled to one-half of all the property. Such decrees may be good, in part and void in part.
It is furthér insisted on behalf of the appellant, that it Richard McKinnie fakes under the will of Young, he must take own onere; that is, that “ the portion given to Me? Kinnie must contribute to the payment of the debts; not only the portion that actually passed, but what he intended should pass.” We do not think that such was the in? tention of the testator, or that it is the legal import of the ■will, and the surrounding circumstances negative the idea. The direction is : that all his debts and funeral expenses be paid as soon as possible after his decease, out of the first monies that shall come into the hands of his executors, out of any portion of his estate, real or personal. The natural presumption resulting from this provision is, that he meant
The appellant also complains of that portion of the decree of the Courts below which requires the master in stating his account, to “ make anmral rests, charging legal interest on the balance found due at the period of each rest.” Our statute, Thompson’s Digest, page 207, Sec. 9, No. 1, declares that “ it shall be the duty of executors, administrators aud guardians, annually at the first term (of tbe Probate Court), to render a full and correct report of the receipts and expenditures oí all estates of which they may severally have the control.” No. 2, same page, provides, “ that executors, administrators, and guardians, may, by leave of the Court, retain in their possession the money of any minor, paying for the same lawful interest, or shall, under the direction of the Court, put out the money of the minor at interest, upon such mortgage security as said Court shall allow, &c., &c: Provided, That the day of payment of the money so put out at interest, at any time, shall not exceed one year from the date of
That portion of the decree complained of in relation to this matter, was doubtless intended by the learned Judge ' who made it, to meet this peculiar provision of the statute, to which of course, we are bound to adhere: but without ■such a statute, we should have doubted the propriety in a case like this, of applying so stringent a rule.
The general rule of the Courts is not to allow compound iuterést. Hoffman’s Master in Chy., 109. “ There may (he says, page 104,) be a case of such gross violation, in an executor, of duty imposed upon him by the will, as to lead tbe Court to allow compound interest; but it is singular, that in the whole range of English decisions upon the un„ warrantable conduct of executors, in all varieties, there is but a solitary case giving compound interest, and that placed by the Court upon the peculiarity of the trust.”
In this country, cases can be found where compound interest has been given, but they are generally if not universally» foiinded upon some peculiar cause, and the general rule deducible from the cases here, is believed to be the same as in England. In the case of the State of Connecticut, vs. Jackson, 1 John. Chy. Rep. 14, the Chancellor? says, “ Except in some special cases, interest upon interest is not allowed, and the uniform course of decisions io
The decree in Raphael vs. Boehm, 11 Ves., 92, 111 and 112, the solita/ry case before mentioned, gave interest upon sums from the time of reception, and then half yearly rests for the purpose of compounding. And in the former as well as the latter particular, Lord Eldon, that eminent Chancellor, who, for more than twenty years,'held the great seal of England, censures that decree, stating that it was peculiar in these points, and was expressed in terms which he hoped would never be found in a decree again.
At the time of the intermarriage of the said Andrew Young with said Elizabeth McKinnie, widow of said Harney McKinnie, (which it appears,by the pleadings in this cause, took place in the fall of the year 1834,) said Young became entitled, in right of his wife, to that portion of the personal estate, including slaves, to-wit: one third thereof, which he, the said Barney McKinnie, by bis last will and testament, bequeathed to bis wife, the said Elizabeth Mc-Kinnie. For this portion of one-third, tho said Young was not liable to account; nor was he liable to account, during the life time of his said wife, Elizabeth, for the use or hire of the same one third of the said slaves, or for the use or rent of the one third of the real estate of his said wife, of which she was seized by virtue of the devise of it to her by the said last will and testament of the said Barney Mc-Kinnie. But for the use or bire of the said one third of the said slaves, since the death of the said Young, the appellant is liable to account; and the said Young, in his life time, was, and the said appellant is, liable to account for the use and bire of the other two thirds of the said slaves ; and the said Young was also liable to account for the rents and profits of the two-thirds of the real estate of the said Barney McKinnie, of which he became possessed in right of Henry McKinnie, who had becotne seized thereof as aforesaid, up to the time of the death of his said wife, Elizabeth, and also for the rents and profits of the whole of the, said real estate from the time of the death of the said Elizabeth to the time of the sale thereof, in the year 1840; and
In taking the account for the hire of the slaves, the estate of said Young should be credited with the hire of the said Tom and Amanda, since the timé of their delivery by John Brett, Executor, &c.) to the guardian of Henry McKinnie, and .in taking the account of the hires of the slaves, a due allowance should be made for clothing said slaves, for loss of time by sickness or other casualties, and for the support and maintenance of such of them as by reason of infancy, old age, or other cause, were unable to earn a livelihood.
' We. do not doubt that the learned Judge who made the decree in the Court below, intended that'the seventh clause thereof should be so construed as that the account might be taken in the manner we have indicated, except as to the Jwp slaves Tom and Amanda; but as from the general terms in which this clause is expressed, the master might perhaps, in some particulars, construe it differently, we have considered it proper to add this much, as explanatory of our .views in regard to it. -
From tbe peculiarity of this caso, tbe decree being in part sustained, and in part reserved, and the fact that both of the parties are administrators, we deem it right and just not to'decree costs in favor of either, but to leave each party to pay his own costs.
-Bet the case be remanded to the Court.below, for further proceedings in accordance with this opinion. Per toiam Curiam.