Summary
Before Kershaw, J., Laurens, November, 1880.
Hon. A. P. Aldrich, of the Second Judicial Circuit, sat at the hearing of this appeal in the stead of the Chief Justice, who had been of counsel in the cause.
Action by J. H. Witherspoon and Phoebe G., his wife, against James W. Watts and William Anderson, as executors of the will of John L. Williams, deceased, John G. Williams, John D. Garlington, W. A. W. Anderson and J. I). Watts, commenced December 27th, 1879.
The case was referred to a referee, who took the testimony, and reported the same, together with a statement of the accounts of the executors, to the Circuit Court. The exceptions to this report sufficiently indicate the items and omissions objected to. They were as follows:
Plaintiff’s exceptions: 1. Because said referee should have reported that the §2,192.00 paid out on December 29th, 1879, by executors for land, was from funds really belonging to Mrs. Phoebe Y. Witherspoon and John D. Garlington; that the land should have been transferred to said devisees, or charged for their benefit with the repayment to them of said amount and interest, and that said referee should have put said amount in Schedule B. as a payment made by said executors to said devisees.
2. In overruling each or any of plaintiff’s exceptions which were overruled to introduction of testimony.
3. In allowing each or any of defendant’s exceptions, which were allowed, to the introduction of testimony offered by plaintiffs.
4. In allowing each or any of the following contested items of executors’ accounts as mentioned in report of referee, to wit, the third item of $506.61; the fourth item of $1,323.45, and the seventh item of $500.00.
5. In allowing commissions to the executors on the amounts received by them for rents of real estate.
6. In not reporting that the accounting herein was not-final, but that a large amount of aboses in action and personal property of the estate were still on hand, and should be accounted for hereafter, and that the accounting of the executors on the copartnership with the estate as to Homestead Mill place and White Plains place was still open for a further accounting.
Executors’ exceptions: 1. Because the referee fails to report that there was a balance against J. Y. Watts, as surviving partner of the testator, John D. Williams, in a farming contract on the White Plains place, of $1,176.74, for the year 1874, together with the items of balance on the same contract, for 1873, of $1,776.50, all of., which counsel for executors claimed should have been excluded from their general account as executors.
2. Because the referee omitted to report the testimony upon which he reported vouchers for payment on the John G. Williams’ note, $172.20, or to give the law by which he was led to his conclusions.
3. Because the referee, in his statement of account, erred in not stating his findings of fact and conclusions of law-therein separately.
4. Because the referee erred in charging the items of $1,776.50 and $1,176.74, the balance for the years 1873 and 1874 respectively, against J. W. Watts, the surviving partner of the testator, John D. Williams, against the executors, when, it is respectfully submitted, these items, amounting to $2,953.24, constitute simply an. indebtedness against J. W. Watts individually, but that this amount should, under no circumstances, have been charged against William Anderson, as executor, either jointly with J. W. Watts or otherwise.
5. Because the referee erred in charging the defendants, the executors, with interest per annual balance, either simple or compound, in his statement of accounts against them.
6. Because the referee erred in not continuing the reference until the creditors of John D. Williams could be called in to establish their claims.
CIRCUIT DECREE.
On June 25th, 1870, John D. Williams, of Laurens county, died, leaving in force his last will and testament, in which James W. Watts and William Anderson, the defendants, were named as executors, and afterwards proved the will and qualified, as will appear by reference to a copy of said will annexed to the complaint in this action, the date whereof is April 25th, 1870.
The first clause of the will directs that the debts be paid as soon as practicable.
The second clause is in these words: “ I will and bequeath to my beloved Wife, Anna C. Williams, for her sole and separate use and benefit during her natural life, the house and lot in the Village of Laurens, on which J[ now reside, containing one hundred and twenty-two and one-half acres; also a small wood-land tract of land, on the right side of the Greenville road, adjoining lands of John M. Franks and containing about forty-eight acres; also all my silver plate, dining-room furniture and household and kitchen furniture; all three of my carriages and a pair of horses, two good mules and my riding Mare Fannie, with such other stock as she may desire to keep on the place, and such other provisions as she and the family may need, and provender for the stock on hand, as may be sufficient for their' necessities for the time, and hereby give her the power and privilege of disposing at her death, of any of the plate or furniture above mentioned, to either of my daughters or grandson John D. Garlington as she may see fit, they accounting to my estate for the same as an advancement, the balance of the above Estate hereby given to her, at her death to revert to my estate for distribution as hereinafter described.”
In the third clause testator recites that “ having heretofore made large advancements to my son John G. Williams, which with the portion of my Estate which I now give to him in this clause, I consider to be a fair proportion thereof: I give and bequeath to my Executors hereinafter named, for his use and benefit during his natural life, my Spring Grove tract of land, including the land which I have added thereto, all lying on the west side of Mudlick Creek and supposed to contain about fifteen hundred acres, together with all the property which w^s on the said place when he took charge of the same; to remain in his possession and enjoyment unless efforts be made to subject the same to the payment of his debts and liabilities, and in this event to be taken charge of by my Executors to prevent and protect the same from such liabilities, and at his death to be equally'divided between such child or children as he may leave surviving him at his death, or should all his children die before obtaining the age of twenty-one years, then to revert to my Estate for division as the residue of my Estate is hereafter directed, and with the provision that no more of the wood land is to be cleared up for oultivation, hereby directing my Executors hereafter named, immediately after my death to deliver and hand over to my said Son all the notes I hold on him and also all'the accounts I have against him previous to 1st January, 1869, amounting to several thousand dollars in lieu of his interest in the balance of my Estate.”
By the fourth clause of the will testator gave his daughters, Lucy and Phoebe, and to his grandson, John D. Garlington, his White Plains place (reserving the burial ground) and all the property belonging to said place at his death, to be kept together and 'managed for theft maintenance, support and education, until the said grandson came of age, or if he should die before that time, until either of his said daughters should marry; then if either his grandson or either of his daughters desired it, a division of the property bequeathed in that clause might be made by sale or otherwise, as may be most desirable. And should either of his said daughters or grandson die, leaving no children or child living at his or her death, then the share of such decedent should go to the survivor or survivors.
In the fifth clause of the will testator gave to his grandson, John D. Garlington, all the books that belonged to his father.
In the sixth clause he gave to Dr. Wm. Anderson (the defendant), in trust for the use and benefit of his son, Washington A. Williams Anderson, fifteen hundred dollars, and in case of his •death before attaining the age of twenty-one years, then to his mother, Elizabeth L. Anderson, and her children then surviving.
In the seventh clause of his will he gave to J. Washington Watts (the defendant), in trust for testator’s namesake, the youngest son of said Watts, fifteen hundred dollars, but if he should die before reaching the age of twenty-one years, then the •same to his said father, if he be then living, and if he be then •dead, the same to be divided among the other children of the .said J. Washington Watts.
The eighth clause of the will is in these words in part: “It is my desire to keep my Homestead in the Village of Laurens in my family; it is therefore my will and desire, after the death of my kind wife, that either of my daughters or my grandson John D. Garlington, take the same at a fair valuation, and if neither •of these desire it, then it, together with all the other part of her said life-estate, be sold and divided among my said daughters and said grandson; the child or children of my said daughters •or said grandson to represent their parent if the parent be dead.”
By the ninth clause testator directs that the plantation which he purchased from the Simpsons, and his interest in the lot upon ■which he had erected a mill, be held by the executors for the benefit of his wife and daughters and grandson John D. Garlington, to assist in their maintenance and support, and that the arrangement- he had made with his friend and relative, Dr. William Anderson, being similar to the one which he had entered into with his nephew, James W. Watts, in reference to the White Plains place, be continued in force until the first day of January, 1875, and as long after as might be desirable or thought best by his executors; and when thought best to make a change, he gave to his daughters and grandson the same privilege to take the same at a valuation as in the case of the homestead; and should neither of them desire it, then that it be sold and divided as in case of the residue of his estate in the eleventh clause of the will.
In the tenth clause, testator directed the Milton mill to be sold and that the proceeds of the sale be applied to the satisfaction of a note held by him on one Thomas Crowder, deceased, and Thomas H. Crowder, after first crediting the same with one-thousand dollars. The balance of said proceeds to be paid, three-fourths thereof to the children of Thomas Crowder, and the remainder to Thomas H. Crowder.
The eleventh clause is in these words (as far as necessary to-transcribe the same), to wit: “ Having specifically disposed as-I desire, I will and bequeath all the rest and residue of my estate such part thereof as I have not otherwise directed, to be sold by my executors at their discretion and the proceeds thereof to be divided as follows: One-fourth part to Col. James W. Watts, and Dr. William Anderson, in trust for the sole and separate use of my said wife during her natural life, with the-power on her part of disposing of the same at her death to such persons as she may see fit; and the remaining three-fourths to be equally divided between my two daughters and grandson in equal portions.” Then follow limitations over in case of the death of either of them, without leaving issue surviving, first to, the survivors with limitations over, in case of the death of the last survivor without leaving issue.
In the twelfth clause of the will, testator expresses the desire that his daughters and grandson remain with his wife as long as they should see fit, and while so remaining to contribute out of their several estates their proportion of the necessary expenses-of the household, and, should it become necessary to repair or rebuild any. of the houses on the home place or to supply the same with stock necessary for the use of the family, the same-was directed to be done by the executors out of the estate.
The thirteenth clause referred to the agreement with James W. Watts,-with regard to the cultivation and management of White -Plains, which testator desired to be continued until its expiration and longer if agreeable to the parties. ' The fourteenth clause directs how his estate should be disposed, in case of the failure of all the previous limitations. The fifteenth claw directs that the shares of his estate which he has given to his daughters, should be held by his executors in trust for their sole and separate use and benefit. The sixteenth clause is practically revoked by the codicil. The last clause names his executors, and desires them to be well compensated for their services, if their legal commissions are not sufficient; desires his friends, J. Wister and William D. Simpson, as his counsel in all matters pertaining to his estate.
Testator also left of force a codicil to said will, dated June 11th, 1870, wherein he refers to the twelfth clause of his will directing his daughters and grandson to contribute out of their estates for the necessary expenditures of the household and the other directions therein in respect of the same, and directs as follows: “ Now in order to make some ample provision for the maintenance of the home place and for the support and comfort of my said wife, daughters and grandson, I further will and desire my executors to supply my said home place during the life of my said wife from my estate, with all necessary provisions, to be taken from any of my plantations or my mill, and likewise to furnish all necessary stock for the place; to keep the roads, fences and houses in good order, rebuilding the same if at any time it may become necessary.”
He proceeds to make the directions contained in the sixteenth clause of the will and directs that the mill be disposed of as directed in the ninth clause of the will, and that Dr. William Anderson take control of and manage the mill and be allowed whatever is right for his services. Lastly, he directs the disinterment and removal of the remains of the members of the family, from the family grave-yard at White Plains, and their re-interment at Laurens Village Cemetery, and requests his friend Dr. John W. Simpson to take charge of, superintend and direct the same; charging the estate with all the expenses attending it, including proper compensation for himself, and directing the executors to pay the same.
Testator left surviving him a widow, Anna E. Williams; three children, Phoebe, wife of James H. Witherspoon (the plaintiff), Lucy Williams and John G. Williams, and a grandson, John D. Garlington, who were his heirs-at-law. Some time in 1871 Lucy Williams died unmarried and intestate and John G. Williams, the defendant herein, administered on her estate.
Some time prior to April ’25th, 1873, Anna E. Williams, the widow, renounced her interests under the will of her husband, and elected to take dower in the lands of the estate, and instituted proceedings to recover the same in the Probate Court of Laurens county. Under these proceedings the sum of twelve thousand four hundred dollars was assessed as the value of her dower in all the lands of her said husband, whereof he died seized, and. a decree of the court in said cause directed the executors to pay her the said sum in lieu and bar of her said dower.
September 26th, 1873, the said executors commenced an action in this court against the said Anna E. Williams, John G. Williams, Phoebe Y. Witherspoon and John D. Garlington, setting forth the facts herein before stated; that the election of the widow to take dower, and the death of the daughter Lucy, had introduced important changes into the estate, giving rise to important questions as to the construction of the will and their duties thereunder, among which were, as to what portion of the estate should be sold to- meet the dower assessment? To what extent Spring Grove should, be subjected to the payment of dower ? And what disposition should be made of the interests under the will renounced by the widow, upon which points they desired the instructions of the court.
In that action a decree was rendered by consent,, bearing date October 27th, 1873, directing an appraisement of such portion of the personal property which had béen bequeathed to his widow by said testator, as Phoebe Y. Witherspoon and John D. Garlington desired to take at a valuation, and the delivery of the same to them respectively upon their several receipts. That the executors have leave to sell at their discretion the balance of said personal property and also the homestead, the small woodland lot devised with it, and the' mill tract near the village of Laurens, “ for the purpose of meeting the dower of the said Anna E. Williams, the debts and pecuniary legacies, &c., prayed for in the complaint.” It was further ordered “that the questions in the pleadings as to the proper construction of the will, as to the rights of the parties growing out of the change in scheme, on account of the election of said Anna E. Williams to take dower, and the renunciation of her interest under said will, be reserved for the further adjudication and determination of this court, and all other equities reserved.”
It does not appear that any further order was made in that cause. Under this decree the executors have sold all the lands, &c., therein authorized to be sold, except two tracts, collectively called the Mill tract, containing six hundred and forty acres, which remain unsold. They have paid the money decreed to be paid for the dower. They have had possession of the real estate described in the will, except Spring Grove, which has been in the possession of John G. Williams, and have received the rents and profits arising therefrom, or occupied them as directed by the will; but in regard to White Plains, which was rented by Phoebe Y. Witherspoon under an agreement with the executors, with the personal property thereon, from January 1st, 1876, to December, 25th, 1879, the condition is peculiar. The rent for the year 1876 was fixed at twenty-five bales of cotton, weighing four hundred pounds each; twelve and a half bales to be delivered on or before December 25th, 1876, at Olinton or Chappels depot as the executors might prefer, and the other twelve and a half bales to be receipted for by Mrs. Witherspoon as her interest under the will in the proceeds of the crop of said plantation. The said agreement was to continue after 1876, to December 25th, 1879, at the election of Mrs. Witherspoon. She has continued in possession up to the present time.
There are demands still outstanding against the estate, two in number, one of which is a suit upon a sheriff’s bond upon which the testator was surety, and both are in litigation. The amount of these demands is claimed to be large, but as yet unknown.
John D. Garlington became of age October 25th, 1879.
On September 1st, 1875, John G. Williams commenced an action against the executors, setting up a claim to Spring Grove under an alleged parol gift from his father, John D. Williams, and praying that he be decreed entitled to the same, free from the trust and limitations of the will, but said action has never been brought to a hearing.
The present action alleges many derelictions and fclaims many liabilities against the executors, and prays that they may be required to account, and to pay the plaintiff, Phoebe, the amount due her; that the property remaining be divided under the will or sold under the direction of the court, and the proceeds distributed ; that if, for the payment of debts, it be necessary that legacies and devises abate, that all abate ratably; that the executors be enjoined from further disposing of the property of the estate or receiving money due the same (alleging their insolvency), and that they pay the same into court and turn over to the custody of the court the amounts to be disbursed under the order thereof; that the legatees and devisees account for what they have each received; that all the defendants be enjoined? during the pendency of this suit, from receiving or disbursing moneys of the estate, or disposing of the property thereof, or interfering with or bringing action, or taking any proceeding against the plaintiffs, to oust them of the possession of the White Plains plantation, or the personal property received by them under their lease thereof, and for further relief.
The executors, in their answer, take issue with the plaintiffs in regard to all allegations affecting their liability, or allege circumstances in avoidance of the same. John G, Williams sets up his title to Spring Grove, as obtained under a parol gift from the testator, and adverse possession thereunder for more than ten years before his death, and claims the protection of the statute of limitations as to the personalty upon the place and the legacy of his indebtedness to his father. He also claims, as administrator of Lucy Williams, whatever may be found to be due him in that capacity. The answer of John D. Garlington raises no question with the executors and needs not to be further recited.
An order was entered in the cause at February term, 1880, enjoining the executors from selling any portion of the estate and directing the status of the estate to be maintained until the further order of the court, and directing a reference “to take testimony upon all issues in this case ” and to report the same, and to state the accounts of the executors and the sums received by each legatee or devisee, with leave to report any special matter, and granting plaintiffs leave to amend by making the infant legatees, Washington A. Williams Anderson and John D. Williams Watts, parties defendant. The referee has stated the accounts and reported the testimony on the other branches of the case. There were many exceptions to the report, and a number of exceptions to testimony admitted or rejected. In this condition the cause is before me for determination.
The exceptions to the accounts of the executors will first be considered. The referee has given no reason in his report for his decisions upon the questionable points, and this is made the •ground of one of the exceptions. Certainly the law requires a judicial officer to give his reasons for his decisions, and the court can obtain but little aid from a referee upon such points unless this is done, but the report will not in this case be returned on this account.
The first, and fourth exceptions, on the part of the executors, object that they were jointly charged with balances found due by J. W. Watts on the copartnership between him and the estate, which was continued, in pursuance of the provisions of the will, for some years after the death of the testator. 1 can see no propriety in charging Dr. Anderson, the co-executor, with this liability. The rule is, “ that the actual possession and use by one of two executors, is not in law the possession and use of both, so as to attach any liability upon both.” 1 Wms. Ex. “And an executor shall not, under ordinary circumstances, be responsible for the assets come to the hands of his co-executor.” - Id. 1292. These principles are fully recognized in our own cases. O’Neall v. Herbert, Dudley Eq. 30; Clarke v. Jenkins, 3 Rich. Eq. 319, &c. There are in this case no special circumstances to vary the rule. The decision of the referee in regard to the balance due by J. W. Watts, on the contract in relation to White Plains, for the year 1873, amounting to $1,776.50, and that for the year 1874, amounting to $1,176.74, whereby these balances were charged as a liability against both executors, is reversed, and it is adjudged that the same are chargeable only against J. W. Watts.
The second exception of the executors objects to the rejection by the referee, without reasons assigned, of a due bill paid by the executors to Hugh Leaman. It was given by John D. Williams to John G. Williams, dated February 13th, 1861, and is not negotiable upon its face. It was entered in the returns as a payment to John G. Williams on a note. The payment to Leaman, or his authority to receive the money, is not questioned by John G. Williams. It should, therefore, have been allowed,, unless the payment to John G. Williams would have been an error.
Testator bequeathed that all John G. Williams’ notes and: accounts be given up to him, “ in lieu of all his interest ” in .the estate. No reference is made in the will to this note or any indebtedness from testator to John G. Williams, and nothing is said therein, whence it might be supposed to be the intention that this legacy should operate as a satisfaction of any demand of this nature held against the testator by John G. Williams. When the testator takes no notice of the debt or leaves the intention doubtful, the legacy will not be held to extinguish the debt. 2 Story Eq. 1123. Slight circumstances will be laid hold of to avoid the construction, that a legacy is to operate as satisfaction of a debt. Hinchcliffe v. Hinchcliffe, 3 Ves. 529. It is said to be “ an absurd rule ” that a legacy shall be intended as satisfaction of a debt. Barclay v. Wainwright, 3 Ves. 466. A negotiable note will not be held satisfied by a legacy. Carr v. EastabrooJce, 3 Ves. 561. In Chancey’s Case, 1 P. Wms. 408, the testator had directed that “all his debts and legacies be paid,” and it was held this took the case out of the rule.
So, when the legacy is given diverso intuitu, some particular reason being expressed as the ground of the bequest. 2 Wms. Ex. 932. As in this case, where the reason for the legacy is stated evidently a gratuity in lieu of his interest in the estate as heir-at-law, distributee, &c., because he had been advanced and would be made equal with his co-heirs, . Williams, for more than two years prior to his death, and that defendant had not estopped himself from setting up this title. His Honor erred in not so finding.
2. Because this defendant is not bound to pay the assessment in lieu of dower in Spring Grove, but it should be paid by executors out of the estate devised and bequeathed to the Avidow, in lieu of which she elected to take dower. His Honor erred in not so finding.
3. Because the defendant, as administrator of the personal estate of Lucy Williams, deceased, is entitled to an account by the executors of the rents and profits from the estate of John D. Williams, deceased, from his death to hers, and to receive one- • third thereof, after deducting the amount expended for her support. His Honor erred in not so finding.
4. Because this defendant is entitled, as administrator as aforesaid, to one-third of the proceeds of sale, and assignment of the homestead and personal property thereon, under the provisions of the second and eighth clauses of John D. Williams’ will. His Honor erred in not so finding.
5. Because said decree is in other respects contrary to the law and evidence.
The infant defendants, by their guardián ad litem, and the executors, excepted to said decree:
1. Because his Honor erred in holding that the sum of $800 paid for the purchase of a tract of land for J. D. W. Watts, was derived from the proceeds of the sale of a portion of the lands of the testator known as the Mill tract, and sold to William Mills.
2. The defendant executors, and B. W. Ball, guardian ad litem, respectfully submit that his Honor erred in not holding that, the property devised to the life tenants, and conditionally to certain devisees, as referred to the residuary clause to pass thereunder, should abate with the property passing under the residuary clause.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
