Clyburn v. Reynolds

The opinion of the court was delivered by Mr. Justice Fraser.

James Chesnut, the elder, styled in his last will and testament, under which this litigation has arisen, “James Chesnut, of Mulberry,” died February 17, 1866, having executed his said will February 16, 1864. By this will James Chesnut, jr., his son, and David R. Williams, a grandson, were appointed executors, and Mrs. Mary Chesnut, his wife, was appointed executrix thereof. Mrs. Mary Chesnut, his wife, predeceased him, leaving a last will and testament, duly executed, dated March 11, 1848, one codicil dated July 27, 1858, and one dated day of , 1858, and of which James Chesnut, the elder, her husband, and James Chesnut, jr., her son, were appointed executors. James Chesnut, jr., became the sole qualified executor of the will of James Chesnut, the elder, and also of the will of Mrs. Mary Chesnut, both of which were duly admitted to probate.

By the will of James Chesnut, the elder, a legacy of $12,000, and regarded by the testator as a debt due by him in consideration of some property of his wife which had come to his hands, and in lieu of dower, was given to his wife, and in ease she should predecease him the said legacy was made subject to such disposition as she might make by will, or instrument in the nature of a will. The property of James Chesnut, the elder, consisted of large sums due him and other assets, but mainly of estates in lands and slaves (some 400 in number), with such live stock, provisions, and other personal property as were necessary and proper for the successful management of such estates. The will was long and complicated in its provisions, and was rendered especially difficult of administration in consequence of the fact that, between the time when the will was executed and the death of the testator-, the emancipation of the slaves had taken place, and. the scheme of the will had thereby become impracticable.

It became necessary to invoke the aid of the courts to adjust the rights of the parties to the new state of things growing out of this loss of property in the slaves, the insolvency of persons who *102 were largely indebted to the testator, and whose fortunes had also perished in the general derangement of values which followed the civil war. On February 23, 1867, a bill in equity was filed by James Chesnut, jr.. the executor, in which all the parties then in being, who were then, by any possibility, interested under the provisions of this will, were named as parties defendant. Two creditors were also named as parties defendant, to wit. Lynch H. Deas, in his own right, and William Wallace, as administrator of William C. Workman. The purpose for which they were brought in will be hereafter stated.

The testator, so far as will be necessary to state here, devised and bequeathed as follows: (1) two tracts of land on “Jumping Gully Creek” to his executors and executrix in trust for his two daughters, Mary C. Reynolds and Sarah Chesnut, and his two granddaughters, Mary C. Grant and Harriet S. C. Grant. (2) A parcel of land known as “Bloomsbury” to his daughter, Sarah Chesnut. (3) A tract of land known as “Sanders Creek” to his grandson, John Chesnut. (4a) To his wife, Mary Chesnut, for life, four (4) plantations — “Belmont and Town Creek” and “Mulberry and Sandy Hill” — with the slaves, live stock, provisions, and so forth, on them, and called his “planting interest.” (b) He charged on the income of said “planting interest” certain annuities or annual payments in favor of Mary C. Reynolds, Sarah Chesnut, his two daughters, and Mary C. Grant and Harriet S. C. Grant, two granddaughters, and also provided as follows : “Should my wife die before my debts [including therein the legacy of $12,000 to her and the interest thereon] shall have been fully paid and satisfied, it is my will and desire, and I devise accordingly, that my whole ‘planting interest’ shall remain in the hands of my executors to be used and employed by them for the satisfaction of said debts and legacy.” {a) Subject to this provision he devised the plantations known as “Belmont and Town Creek” to his two daughters, Mary C. Reynolds and Sarah Chesnut, and to his two granddaughters, Mary C. Grant and Harriet S. C. Grant, under certain trusts, and with remainders over. (d) Subject to the same ’ provision he gave to his son, James Chesnut, jr., for life, the plantation known as “Mulberry and Sandy Hill,” and at his death to his issue, and in default of *103 issue, subject to his appointment by will in favor of one of the male descendants of the testator, and, in default of such appointment, then to the children and grandchildren of testator then living. There is also a power of appointment in the twentieth clause of the will confined to one of the testator’s “grandsons bearing the name of Chesnut,” and to which we will hereafter refer. (5) Testator in his will gave to the children of a deceased son, John Chesnut, a- “bond” of James Chesnut, jr., for $16,000, secured by a mortgage of “The Hermitage, Camden Mills, and Pinetree plantations,” which he had conveyed to his said son, James Chesnut, jr., in his life-time. • (6) Testator directs that certain interests in lands in Pennsylvania be sold, and the proceeds divided among his children and grandchildren. (7) There are sundry small specific and pecuniary legacies to different persons of not much importance (8) Testator gives a legacy of $5,000 to his grandchildren, 'Mary S. C. Witherspoon and David R. Williams, to be paid out of debts due testator in the West. (9) Testator, directs that all money due to him on account of debts due at bis death be applied to the payment of his debts, and then to the payment of the legacy of $12,000, if not otherwise fully satisfied. (10) Testator, by the tenth clause of his will, gives all other tracts of land, not hereinbefore specifically devised, to his son, James Chesnut, jr., and his heirs. (11) And in the thirty-third clause of the will he gives all the rest and residue of his estate, real and personal, to his children and grandchildren therein named. This brief statement of the provisions of the will is perhaps sufficient for the present purpose.

The specific purpose for which Deas and Wallace, the two creditors, were made parties, was to have an adjudication of the value of their claims in good money, they' having been created during the war, and in consideration, as alleged, of 4 per cent, certificates borrowed by testator for the payment of taxes. They were not called in as representatives of a class', as is usually done in a bill to marshal the assets of an estate which is insolvent. Other creditors were not called in, and the bill expressly states that .there is “no ground upon which to invoke the restraining process of this court, as the estate is abundantly good for all liabilities of testator.” It appears that the claim of Deas has not been *104 paid, but the claim of Wallace seems to have been paid, as no mention is made of it in the reports of the master.

It appears from an examination of the bill that its scope and purpose were: (1) To determine the value in good money of the claims of Deas and Wallace, administrators, two creditors who were made defendants; (2) to obtain an order of the court for leave to carry out a proposed compromise of a large debt due by parties residing in Mississippi; (3) to obtain a construction of the court of the power of appointments given in the sixth and twentieth clauses of the will; (4) to subject the choses in action, stocks, &c., and the Mississippi lands (to be taken under the proposed compromise for the Mississippi debts) to the payment of the debts, and the legacy of $12,000, and for an order for the sale of these assets, as well as the residuary estate for this purpose ; (5) to have an order for the partition of Belmont and Town Creek plantations; (6) for general relief. The nature of this general relief is indicated in the bill in these words : “If the estate has longer to be kept together to meet the debts of.the testator, your orator well hopes that by orders herein arrangements may be made to pay the debts, and to assign and allot to each the portions assigned them in the will; but if this cannot be promptly effected, he asks the aid of the court herein.” Sarah Chesnut, ■Mary C. Reynolds, and her daughters, Mary R. DeSaussure, Emma C. Reynolds, Ellen C. Reynolds, Sally Reynolds, and Esther S. Reynolds, James J. Frierson, and Mary C., his wife, ■Harriet C. Stockton and her child, Lucian W. Stockton, and Lynch H. Deas appeared and answered the bill. The bill was taken pro confesso against all the other defendants.

No one has culled in question, in this appeal, the regularity of this order pro confesso except David R. Williams, who takes the ground that he has never been properly made a party, either as one of the devisees under the will or as appointee under the power given in the will to James Chesnut, jr.

The case came before Chancellor W. D. Johnson for a hearing, and he rendered a decree in the cause, dated March 6, 1868. Of this decree it is only necessary here to say that the construction put by it on the power of appointments was the one followed by James Chesnut, jr., in executing that power in favor of David *105 R. Williams, one of the “male descendants” of the testator, and that by it a writ of partition was ordered to be issued, in accordance with the prayer of the bill, to divide “Belmont and Town Creek plantations” among the parties entitled thereto under the will, subject, however, to any claims of the creditors of JamesChesnut, the elder, that may not be satisfied out of the portions of the estate first chargeable with debts, and to such contributions among devisees and legatees as may be necessary to meet deficiencies towards paying debts and other charges.

To the writ thus issued a return was made by the commissioners in partition recommending a sale, which by law was one of the exigencies of a writ of partition. Upon this return an order was made by Judge Boozer, dated September 22, 1869. confirming the return, and directing a sale. By this same order James Chesnut, jr., and William M. Shannon were appointed receivers, and without sureties, and they were authorized to make the sales, and were directed, after the payment of certain costs and fees, tó hold the balance of the purchase money and securities taken, subject to their due proportion of the debts of the testator and to the further order of the court. Large sales were made by the receivers under this order, to which reference will be made hereafter.

. On January 20, 1871, an order was made by Judge Melton for the sale of 2,663J acres of “Mulberry.” On October 2, 1872, an order was made by Judge Melton for the sale of 601-J acres of “Mulberry.” Both of these orders for the sale of portions of Mulberry directed the sales to be made by James Chesnut, executor, and he was directed to hold the proceeds “subject to the pro rata share of debts and legacies chargeable upon them.” These orders were made on motion of the attorney of James Chesnut, jr., executor, and with the consent of “J. B. Kershaw, defendants’ solicitor,” and “J. M. Davis, defendants’ solicitor.” We think the only proper inference is that they were the attorneys or solicitors for all of the defendants who had answered, but for none of those who had not answered, and as to whom there was entered an order pro aonfesso. What is called “Mulberry” in these orders seems to have meant portions of Mulberry and Sandy Hill, which were sold under these orders. Large portions *106 of Mulberry and Sandy Hill were-sold by James Chesnut, jr., under these orders, to which we will hereafter refer.

It will be noticed that under all of these orders for sale of the four plantations, the -court, at the suggestion and on motion of eminent counsel, seems to have guarded the interests of creditors, and seems to have regarded the proceeding as one in which their rights were involved, even though not made parties,, having before the court the executor who was trustee for the creditors first, and whose interest it was his duty to protect, ■ even against the legatees and dévisees.

The case,- about 1870. was dropped from the calendar. On December 12, 1883, a notice was served on Mary C. Reynolds, Sarah Chesnut, Mary R. DeSaussure, Emma C. Reynolds, Ellen C. DeSaussure, Esther S. Davis, Mary S. C. Witherspoon, David R. Williams, Thomas W. Chesnut, James Chesnut, Serena Haile, Mary C. Erierson, and Harriet C. Stockton of a motion (1) to restore the case to the calendar; (2) to provide for the sale of those portions of “Mulberry and Sandy Hill” not sold under previous orders ; to substitute the proceeds for the land so sold ; to provide for the life estate of James Chesnut, jr., and for the interest of those in remainder in the lands so sold, or in the fund so substituted for them ; (3) to provide for contribution among those interested to pay legacies and other charges, so as to equalize payments made and to be made; (4) to provide for a final settlement of the estate of the testator. On February 8, 1884, an order of reference was made in pursuance of this notice looking to an accounting by James Chesnut, executor and receiver, William M. Shannon having died, and to a final settlement of the estate.

By some order, not in the “Case,” P. II. Nelson had been appointed receiver, and the master, by a report dated September 15, 1885, recommended a sale of (1) “Indian Mound or Taylor’s Field” and a “Sandy-hill tract,” containing 17.7 acres, which were lands passing under the residuary clauses of the will; (2) of all or a portion of the “Hermitage lands,” being land con-' vey°d to James Chesnut, jr., by his father, James Chesnut, the elder, in his life-time, and covered by a mortgage to secure the bond of $16,000, and given by the will to the children of John *107 Chesnut, deceased. An order for the sale of these lands was made by Judge Hudson, dated September 16, 1885. James Chesnut, jr., the executor, had died February. 1, 1885, and when this order was made it does not appear that any one had been made a party to the cause, representing the estate of James Chesnut, the elder, James Chesnut, jr., or any one as heir of James Chesnut, jr. Reference will hereafter be made to the'sales made under this order.

James Chesnut, jr., the executor, and life tenant of “Mulberry and Sandy Hill,” by a last will and testament, under the power given to him in the sixth clause of the will of James Chesnut, the elder, appointed David R. Williams, one of the “male descendants” of James Chesnut, the elder, there being a default of issue of the said James Chesnut, jr., to take and hold the said “Mulberry and Sandy Hd'l plantations.”

Stephen C. Clyburn has been appointed administrator de bonis non cum testamento annexo of the estate of James Chesnut, the elder. In August, 1886, he filed a supplemental complaint, in which all the parties made defendants in the original complaint were made defendants, and also Mrs. Mary B. Chesnut, who is the only new party, and made such as the widow of James Chesnut, jr. The appointment, by the will of James Chesnut, jr., in favor of David R. Williams is set out in this supplementary complaint, and he is made a party defendant in this new relation as appointee. Th'e prayer of the supplemental complaint is for judgment (1) that the “Mulberry and Sandy Hill” plantations, appointed by the will of James Chesnut, jr., under the power to David R. Williams, be adjudged liable for their proper proportions of the debts of James Chesnut, the elder; (2) that the "defendants, the descendants of John Chesnut, may be adjudged to account for any portions of the $16,000 legacy paid to them, and that the sums already paid, and any balance not yet paid, be adjudged liable for the payment of debts in exoneration of the real estate; (3) for the relief demanded in the original complaint, and for any further relief proper in the cause.

Harriet C, Stockton, Lucian W. Stockton, James Frierson and Mary, his wife, answered this supplemental complaint, joining in the prayer thereof. Th'e descendants of John Chesnut who are. *108 interested in the $16,000 legacy (1) deny their liability to account for what has been paid them on this account, or to contribute out of that legacy to the payment of debts in exoneration of the realty. (2) They deny that the power of appointment under the will of James Chesnut, the elder, was properly exercised in favor of David R. Williams, and claim that the power could have been exercised only in favor of a grandson bearing the name of Chesnut, as provided in the twentieth clause of the will. (3) They claim payment of any unpaid portions of the $12,000 legacy under the joint wills of James Chesnut, the elder, and Mary Chesnut, his wife

David R. Williams has answered, claiming (1) that he holds “Mulberry and Sandy Hill” under a valid execution of the power; (2) that he was never properly made a party defendant to the original bill of complaint filed in 1867, in any capacity ; and if it should be held by the court that he was properly made a party defendant in any capacity, (3) that he was not made a party in his new capacity and relation as appointee under the power, the appointment not having been made; (4) that therefore he is not bound by any of the orders heretofore made, or transactions under them, especially such as are outside of the scope of the bill; (5) that there was ample personal estate to pay the debts and legacy of $12,000, and that he is in no way responsible for the appropriation of the proceeds of portions of “Mulberry and Sandy Hill” to the payment of the debts and this legacy of $12,000; (6) that, while not bound by the sales made under these orders of portions of “Mulberry and Sandy Hill,” he would elect to confirm such sales if the court would charge such of the children and grandchildren of testator who consented to these orders, and who, under the will, are entitled to be paid by the appointee under the power the full two-thirds value of these plantations, not including the value of the residences, with the amount of sales made; (7) that there was abundant real and personal estate applicable to the payment of the debts and this $12,000 legacy; and (8) that all such debts and such portions of said $12,000 legacy as may not have been paid, are barred by the statute of limitations, and as to them he sets up also the presumption of payment from the lapse of 20 years, and the laches of the said *109 creditors and legatees in neglecting to realize their claims out of funds applicable to and provided for their payment.

On February 10, 1886, a petition in the cause was filed by Mrs. Mary B. Chesnut, widow of James Chesnut, jr., in which, it was stated that a short time before his death James Chesnut, jr., took out a policy of insurance in the Home Insurance Company, of New York, on the residence on Sandy Hill for the sum of $2,250; that the policy was taken out by mistake in the name of James Chesnut, as executor; that the residence was destroyed by fire in his life-time, and proof of loss was made out before his death; that questions having arisen as to who was entitled to the said money, it was paid to P. II. Nelson, receiver, and is now in his hands, subject to the order of the court; that the said policy should have been in the name of James Chesnut as an individual, as the same was intended for his own benefit. She therefore claimed that the money should be paid to the administrator of James Chesnut, jr., in order that the same may be applied to the payment of his debts, she holding a large claim against his estate by judgment. Mrs. Mary B. Chesnut has since died, and David R. Williams, jr., her administrator, has been substituted as a party in her place in this cause.

There are several elaborate reports of the master, covering the issues raised in the original bill, in the supplemental complaint, and in this petition, in reference to the insurance money. These reports bear date respectively January 16, 1885, September 1, 1887, September 3, 1887, and August 29, 1887; the latter being the report in reference to the insurance money. All these reports came up before Judge Witherspoon on exceptions, and a judgment was rendered by him bearing date February 15, 1888. It is on exceptions to this judgment that the cause is now before this court on appeal. It will not be necessary to take up these exceptions seriatim, but we will take up in order the questions raised by them.

The points adjudicated by the judgment of the Circuit Court will be better understood by the statement of a few facts which appear in the “Case” :

*110 There was realized from the sale by W. M. Shannon and James Chesnut, jr., receivers of portions of Belmont, $13,416 90

From sale of portions of Town Creek by them, 19,576 84

From sales of reserved lands (portions, we take it, of Belmont and Town Creek) by them, 1,880 00

Total, $34,873 74

From sales of Sandy Hill and portions of Mulberry by James Chesnut, executor, $ 3,937 23

From sales of Mulberry, 10,803 55

Total, 14,740 78

Total from sales of real estate, $49,714 52

Total not accounted for from Belmont and Town Creek, $13,982 43

Total not accounted for from the reserved lands, 1,880 00

Total, $15,862 43

Total not accounted for from Mulberry and Sandy Hill, 6,886 96

Total unaccounted for, 122,749 39

Total of payments from Belmont and Town Creek, $19,011 31

Total of payments from Mulberry and Sandy Hill, 7,853 82

Total of payments, $26,865 13

There is nothing in the “Case” to show what has been collected or paid out from the choses-in-action and the residuary personal estate ; the unsatisfactory condition of the accounts of the executor and the receivers being perhaps due to the death of Mr. Shannon and the loss of a book in which he kept the accounts of the estate. These reports of the master show that on August 15, 1*84, a short time before the death of James Chesnut, jr., the executor, there remained as outstanding claims:

*111 Judgment of W. A. Ancrum, obtained in' 1867, $ 780 86

Judgment of .L. H. Deas, obtained in 1869, 1.117 11

On legacy of $12.000 to Mary Witherspoon, 973 57

“ “ “ “ “ Sarah Chesnut, 2,516 46

“ “ “ “ “ Minnie L. Deas, 443 80

“ “ “ “ “ Amelia Chesnut, 67 45

“ “ “ “ “ Ellen Chesnut, 67 45

“ “ “ “ “ Amelia Taylor, 523 14

Total, $6,489 84

The claim of William Wallace, administrator, does not appear in the list, and must have been paid. W. A. Ancrum, one of the judgment creditors, has never in any way been made a parry to this cause, and he cannot be bound by any order herein. He must proceed as he may be advised. It does not appear that any of the proceeds of the sales made by the receivers above referred to, or by James Chesnut, jr., executor, are within the reach of the court; but if there are any such, they are applicable to these claims in their proper order. Ihe judgment from which this appeal is taken has made no order in reference thereto.

The following is an approximate statement of the funds now in the hands of P. II. Nelson, receiver, and of the sources from which they are derived :

Insurance money $2.250 00

Hermitage lands, 2,450 00

Rents of Hermitage and Town Creek. 1,082 00

“Indian Mound” or “Taylor’s Field” paid on debts of L. II. Deas and W. A. Ancrum, without prejudice to the rights of parties to this action, 840 00

$6,622 00

The exceptions to the judgment of the Circuit Court, in which the views of the master were in part adopted, raise questions as to the principles on which this estate must be settled, which, after proper inquiry, may be hereafter applied, unless this court concurs in the view taken by the Circuit Judge.

The first, and perhaps the most important, question which *112 meets us is as to the effect of the previous orders in the case, and the transactions under them, upon David R. Williams as one of the legatees under the will, or in his new relation as appointee of James Chesnut under the power given to him in the will. No other party has called in question the validity of these orders except David R. Williams, unless it be the descendants of John Chesnut, and they only question the construction given by Chancellor Johnson to the power of appointment, which was adopted by James Chesnut, jr., and under which David R. Williams claims as appointee.

As to the order pro eonfesso against David R. Williams as an absent defendant. There is in the record no affidavit, as required by the act then in force, that David R. Williams and others did not reside in the. State, and there is no affidavit that the order of publication was inserted in a newspaper the requisite number of times. We find, however, an “order of publication clipped from the paper in which it was published at the time, and appears pasted in a book in the office of the commissioner in equity.” This printed order was signed by the commissioner, “J. D. Dunlap, C. E. K. D.” These parties are required in the order to appear, &c., within 40 days. This order has on it the printer’s private mark to show how long it was ordered to be published — “td,” till day — and in it is recited the fact that it appeared to the satisfaction of the commissioner that David R. Williams and others are without, and reside beyond, the limits of the State. Then follows without date, but in the usual form, the order pro eonfesso. Nearly 12 months after the date of the sub. ad res., the decree of Chancellor Johnson, above referred to, was rendered.

It must be remembered that this record is now an old one— over 20 years — and that it has run the gauntlet of the reconstruction period in this State. It is held in Illinois that if substantial service by publication or otherwise appears, and the court rendering the judgment declared the proof of regularity sufficient, the existence of incidental facts may be presumed to aid its jurisdiction. Secrist v. Green, 3 Wall., 751 . It is not necessary here to go to the extent of this ruling, because we think that the fragmentary evidence before us points almost conclusively to the existence of the affidavits which were necessary in the case, and *113 certainly nothing to the contrary appears in the record. It would be very dangerous, after such lapse of time, to hold that the mere absence from the record of affidavits usually written on loose sheets of paper should fender invalid proceedings under which important rights have been adjudicated and valuable titles been acquired. We therefore hold that the order pro confesso against David R. Williams was properly taken, and that he and all the other defendants in the same situation are bound by all orders properly taken within the scope of the bill.

Now, what was the scope and purpose of this bill ? If it had been a bill to call in the creditors and marshal the assets of the estate as well in the interests of the creditors as of the devisees and legatees, there could be no doubt that the court would have a right to bar the rights of all parties interested in the estate, and who are properly made parties. The claims of creditors are paramount to all others. We hold that the general doctrine is that whenever the Court of Equity finds it necessary to take jurisdiction of an estate in lands, and when it becomes necessary to control and dispose of the fee, it has the right, by a sale for this purpose, to bar the rights of all mere contingent remainder-men who have no present interests, and cannot be therefore made parties. Williman v. Holmes, 4 Rich. Eq., 475 ; Farr v. Gilreath, 23 S. C., 502. This last case was only for the change of investment, and the trustee and life tenant alone were made parties, and the court held contingent remaindermen bound by the orders for sale made in the case.

If there had been a failure of issue of James Ohesnut, jr., as there was, and a failure to make an appointment by James Chesnut by will, “Mulberry and Sandy Hill” would have gone to the children and grandchildren of testator then living, clearly giving-them contingent remainders. The appointee stands in the same position in reference to this property as he would have done if he had taken it as one of the children and grandchildren then living, except that he takes the whole property subject to the charge. “Immediately upon the execution of such a power the estates created in default of appointment cease and are defeated, and the estates limited under the power take effect from the time of the execution of the power in the same manner as if they had *114 been contained in the deed creating the power.” 2 Sugd. Pow., 33, § 2. While, therefore, it is true that, as laid down in' Fraser & Dill v. Charleston, 13 S. C., 533, a party to an action can be bound by the judgment of the court only in that capacity in which he has been impleaded, there is no reason why, in a proper case, a contingent remainderman, or, as here, the appointee of a power given on a contingency, may not be bound by the orders and judgment of the court where he has not been, and even could not Shave been, made a palrty.

The creditors, as a class, were not called in as parties to this bill, and as such they are not bound by the orders made therein, except such as were made parties. The executor is trustee first for the creditors, and then for the. devisees and legatees. The creditors could have reached the property of the estate by suits at law against the executor alone, or, as our courts are now organized, by an action on the law side of the Common Pleas. If this had been a case in which the estate was insolvent, and the creditors, as a class,' had been called in, as well as those defendants who Were interested as devisees and legatees under the will, there can be no doubt that sales made would have been binding on all who were interested in the estate, whether for life or in remainder, vested or contingent, or under a power of appointment not then executed and dependent on some contingency which might never happen.

It may be doubted, and this seems to have been the theory on which the bill was framed, whether, in case of a solvent estate as this was, the creditors could have been compelled, with a full remedy in their hands, to come in as parties to a litigation between the devisees and legatees as to the order and proportions in which they should contribute to the payment of the debts, and as to the relative rank of their respective interests under the will. A partition of “Belmont and Town Creek” was prayed for in the bill, and this carried with it, as a necessary incident, a prayer for a sale of the lands if the same could not be divided without injury to the parties. The proceedings under this bill from the beginning, so far as the orders of the court were concerned, were taken with a special reference to the rights of creditors, in whose interest the executor was before the court; the proceeds of every sale *115 having been charged with the pro rata share of the debts, of which the $12,000 legacy was one, having been put by the testator in his will on the same footing as a debt, at least so far as the devisees and legatees are concerned. The same remark applies to all the sales made of “Belmont and Town Creek” and of “Mulberry and Sandy Hill.” All persons interested in “Belmont and Town Creek,” then in being, answered the bill, and are bound by the sales made, and do not now call them in question.

We concur in the construction of the will as to the power of appointment given in the decree of Chancellor Johnson, which has not been appealed from. We therefore hold that David R. Williams is entitled to hold as appointee under the power given to James Chesnut, jr., but for the reasons above given we do not think that he has any right to set aside the sales of “Mulberry and Sandy Hill,” made under the orders in this case, and that these orders are within the general scope of the bill, “that by orders herein arrangements may be made to pay the debts, ^ * * but if this cannot be promptly effected, he asks the aid of the court herein,” and which seems to have been the view acted on by the distinguished counsel in the case and adopted by the court.

It is true that these orders for sale are by agreement or consent of parties who had answered, and by their solicitors, no other persons being bound by the consent, while by this consent parties were cut off from the rights of appeal from these orders. If they were made in open court, and were within the scope of the pleadings, they are in all respects binding as orders or judgments, if not appealed from; all parties who have been served and made parties being presumably for all purposes covered by the pleadings present in court, and bound by what is done. The fact that some of the parties to an action consent to an order or a judgment in open court does not render them invalid as to those who do not consent, unless, in proper time, as was done in the case of Hand v. Railroad Co. (10 S. C., 406), an appeal is taken, and the order or judgment set aside as to the parties who do not consent, on good and sufficient grounds other than the want of “consent.”

. The sales of “Belmont and Town Creek” were made by William M. Shannon and James Chesnut, jr., who were appointed *116 receivers for this purpose. The bill did not pray for the appointment of receivers, but the appointment was not void for this reason. “A receiver may be appointed at the final hearing, even though the bill contain no prayer for such relief.” High on Receivers, § 83. The sales of “Mulberry and Sandy Hill” were made under the orders of the court by James Chesnut, jr., as executor, and not as receiver. It has been the practice, perhaps one not to be commended, to require the party before the court, holding the property under some trust, to make such sales. It may be that on appeal it might have been held that such an order was irregular, and that the sale should have been made by an officer of the courts, or it may be that James Chesnut, jr., would have been held, in effect, a receiver. However this may be, it is now too late to disturb these sales on this account; there having been no appeal, and valuable rights acquired under them.

If, then, these orders, and the sales under them of portions of “Belmont and Town Creek” and “Mulberry and Sandy Hill,” are valid, it is too late now for any of the parties to this proceeding, who are interested in the proceeds of such sales for the payment of their debts and legacy, and which proceeds were largely in excess of their claims, to demand that any other portions of the estate, real or personal, shall be subjected to their payment, or to call for any other contributions for their benefit. They have had the prior claim on those proceeds which have been provided at the expense of other parties, and within the control of the court. If these proceeds can be reached, they can have the orders of the court to do so, and if they cannot be reached, it is their own fault that they have been allowed to pass out of their reach, and it is not just that they be allowed to levy further contributions for their benefit. They should have seen to it that these proceeds should have been properly applied.

If more of “Mulberry and Sandy Hill” has been sold than was sufficient to pay their pro rata share of the debts and legacy, and the fund has been lost, all of these parties, including David R. Williams, the appointee, must bear their proportions of the loss. Those who were in court, and consented by their solicitors to these orders of sale, did not thereby warrant to the appointee or to each other that the' fund arising from the sales would be pro *117 perly accounted for and applied. We therefore hold that David R. Williams, the appointee, who is in possession of the unsold portions of “Mulberry and Sandy Hill,” is entitled to hold such unsold portions, subject to the payment of the two-thirds value of such unsold portions, not including the value of the residences thereon, to the children and grandchildren living at the death of James Chesnut, jr., in the proportions prescribed in the will of testator.

If the sales already made of portions of these four plantations have not been sufficient to pay the debts which may still be valid claims, it may become necessary to resort to other portions of the estate for this purpose, and certain funds now in the hands of the receiver or to come into his hands, have been ordered in the judgment appealed from, except “those derived from the sale of lands specifically devised,” to be paid (1) to costs; (2) to the two judgments referred to; (3) to balance of legacy of $12,000, without interest, after the receivers were in funds to pay them. It is necessary, therefore, under the exceptions to consider the order of liability of different portions of the estate. The “Hermitage” lands were conveyed by testator to his son, James Chesnut, jr., and the bond for $16,000, secured by the mortgage of “Hermitage” and other lands, is clearly a specific legacy. 1 Wms. JEx'rs, 845. “Indian Mound” or “Taylor’s Field” passed either to James Chesnut, jr., under the tenth clause of the will, or to the children and grandchildren under the thirty-third clause, and as to w'hich parties have not been heard.

Now, the order of liability of the assets in this case, not referring to classes which are not represented here, so far as we know, is as follows: (1) Money received on debts due to the testator at his death, and charged therewith in the twenty-ninth clause of the will; (2) the general residuary personal estate; (3) the rents, if any, or other income from “Belmont and Town Creek,” “Mulberry and Sandy Hill,” and the proceeds of the sales of any portions of these plantations heretofore sold, or hereafter to be sold, if any debts should appear, which have not been paid, and not barred by lapse of time or otherwise; (4) specific legacies, and lands whether devised in terms specific or residuary, pro rata. This is intended as the order only as to the assets which seem to *118 be within the purview of this case. See Warley v. Warley, Bail. Eq., 397; Jarm. Wills, 449, 450. The money on hand from sale or rents of “Hermitage” is clearly not liable until the previous classes have been exhausted. The rents from “Town Creek” are liable in the third class above.

The only other question which remains is as to the insurance money, $2,250, now in the hands of the receiver, P. H. Nelson, and which has been subjected to the payments ordered by the Circuit Judge. James Chesnut, jr., had carried for several years a policy of insurance on the residence on “Sandy Hill Plantation.” The policy had expired; and a short time before his death, and while he was in very feeble health, the policy was renewed in the name of James Chesnut, executor. It is not clear whether he intended to have the policy in his own name or as executor, and in the view we take it is not important. It is not well settled in this country as to how far a tenant for life is responsible to the remainderman for “accidental fires.” 4 Kent, 82. A sum of money paid to the guardian of an infant tenant in tail for rebuilding a copy-hold tenement that had been burnt was held to belong to the remainderman. The personal representative of the infant being entitled to the interest as compensation for rents and profits, copy-hold tenants were liable for waste unless by the act of God. Rook v. Warth, 1 Ves., Sr., 461, 462. In case of a total loss by fire the fund arising from general insurance is substituted for the destroyed property, and the life tenant will be entitled to the interest for life, and the remainderman to the principal. Haxhall’s .Ex’rs v. Shippen, 10 Leigh., 536; Graham v. Roberts, 8 Ired. Eq., 99 .

In the case of Annely v. DeSaussure (26 S. C., 505), an insurance policy taken out by one tenant in common was held not to inure to the benefit of the co-tenant. One tenant in common is not in any sense a trustee for his co-tenant, and has no insurable interest in his share of the property. A life tenant, bn the other hand, is a trustee for the remainderman, and is certainly liable for loss by fire caused by his negligence. He ought not to be allowed to put himself in a position in which he would have no motive for proper care of the estate by having a policy of fire insurance by which, in case of loss, he could substitute the full *119 fee simple value of the buildings in place of his interest for life. We therefore think that a sound public policy requires that any money collected by a life tenant on a total loss by fire should be used in rebuilding, or should go to the remainderman, reserving the interest for life for the life tenant.

We quote as appropriate the language from 4 Wait Act. & Bef., 22, in reference to insurance beyond the value of interest of the insured: “And where the insurance is beyond the amount of the interest at stake, the effect is the same; for, although the amount of the loss only can be properly recovered, there will be a hope of getting more.” It would be in the nature of “gambling.” In accord with these views is the case of Parry v. Ashley, 3 Sim., 97, and our own case of Bath Paper Co. v. Langley, 23 S. C., 129, in which the court uses these words: “If * * * the defendants stood in the relation of quasi trustees towards the plaintiffs, then the money received by them for the insurance on the house of the plaintiffs belonged ex cequo et bono to the plaintiffs.” With these views of this case we hold that the insurance money now in the hands of the receiver belongs to David R. Williams, and that he is not liable to account for it in estimating the two-thirds value of Sandy Hill in his settlement with the other children and grandchildren of testator, but liable for its pro rata share of any valid debts, according to the above views, yet to be paid out of the estate.

It is therefore ordered that the judgment of the Circuit Court be reversed so far as inconsistent with the principles herein announced, and that the ease be remanded to the Circuit Court for such further proceedings as may be necessary and proper to carry out the views herein expressed, and as may be necessary to adjust the rights of the parties, under the principles herein set forth. 1

This completes the cases of November Term, 1888. — Reporter.