William Taylor, George Taylor, William Primrose, and Eliza, His Wife, George Porter, and Elspet, His Wife, William Rainey, Alexander Rainey, and Elizabeth Rainey, Complainants and Appellants v. Vincent Benham, Administrator De Bonis Non, With the Will Annexed, of Samuel Savage, Deceased Respondent and Appellee Vincent Benham v. George Taylor

• Decision Date: 01 January 1847
• Parties: WILLIAM TAYLOR, GEORGE TAYLOR, WILLIAM PRIMROSE, AND ELIZA, HIS WIFE, GEORGE PORTER, AND ELSPET, HIS WIFE, WILLIAM RAINEY, ALEXANDER RAINEY, AND ELIZABETH RAINEY, COMPLAINANTS AND APPELLANTS, v. VINCENT M. BENHAM, ADMINISTRATOR DE BONIS NON, WITH THE WILL ANNEXED, OF SAMUEL SAVAGE, DECEASED, RESPONDENT AND APPELLEE. VINCENT M. BENHAM, &C., v. GEORGE TAYLOR, &C
• Court: U.S. Supreme Court

46 U.S. 233

5 How. 233

12 L.Ed. 130

WILLIAM TAYLOR, GEORGE TAYLOR, WILLIAM PRIMROSE, AND

ELIZA, HIS WIFE, GEORGE PORTER, AND ELSPET, HIS

WIFE, WILLIAM RAINEY, ALEXANDER RAINEY, AND ELIZABETH

RAINEY, COMPLAINANTS AND APPELLANTS,

v. VINCENT M. BENHAM, ADMINISTRATOR DE BONIS NON, WITH

THE WILL ANNEXED, OF SAMUEL SAVAGE, DECEASED,

RESPONDENT AND APPELLEE.

VINCENT M. BENHAM, &C.,

v. GEORGE TAYLOR, &C.

January Term, 1847

THESE cases were twice before partially brought to the notice of the court, and are reported in 1 How., 282, and 2 Id., 395.

They were cross appeals from the district Court of the United States for the Northern District of Alabama, sitting as a court of equity.

The bill was originally filed by Samuel Taylor, the father of William, George, Eliza, and Elspet, together with his nephews, William Rainey, Alexander Rainey, and his niece, Elizabeth Rainey, against George M. Savage, executor of Samuel Savage, deceased. The object of the bill was to hold the estate of Samuel Savage responsible for certain moneys which, it was alleged, he had received during his lifetime, in his capacity of executor of William F. Taylor, a citizen of the State of South Carolina, and also for his alleged neglect of lands in Kentucky, by which they were lost.

The record was very voluminous, as a great mass of evidence was filed in the court below, all of which was brought up to this court.

The claim divided itself into two distinct branches, one arising from transactions in South Carolina, where William F. Taylor, the testator, died, and where letters testamentary where taken out by Samuel Savage; and the other from transactions in the State of Kentucky. Each of these branches will be stated separately.

William F. Taylor resided in South Carolina, where he had been naturalized in 1796. Savage lived with him for some time, and afterwards continued to reside in the vicinity. In 1811, Taylor died, leaving a will, which was admitted to probate on the 11th of August, 1811.

At the time of his death, the brother and sister of the testator, namely, Samuel Taylor and Mary Taylor, were both alive, married and had issue. Their children ultimately became parties to this suit, and their names are in the title of the case. Samuel Taylor had two sons, namely, William and George, and two daughters, namely, Eliza, who intermarried with William Primrose, and Elspet, who intermarried with George Porter. Mary Taylor intermarried with William Rainey, and her issue were two sons and a daughter, namely, William, Alexander, and Elizabeth.

The first section of William F. Taylor's will was as follows, namely:——

'First. I do hereby order, will, and direct, that [on] the first day of January, first after my decease, or as near that day as can conveniently be, that the whole of the property that I may die seized and possessed of, or may in any wise belong to me, be sold on the following terms and conditions, that is to say: All the personal property on a credit of twelve months from the day of sale, purchasers giving notes of hand or bonds, with security, to the satisfaction of my executors; and all landed or real property belonging, or in any wise appertaining to me, shall be sold on a credit of one, two, and three years, by equal instalments, purchasers to give bond, bearing interest from the date, with securities to the satisfaction of my executors, and, moreover, a mortgage on the premises.'

The second section gave a legacy to his negro woman Sylvia.

The third and fourth sections also bequeathed legacies to particular individuals.

The fifth and sixth sections were as follows:——

'Fifthly. I do hereby will, order, give, grant and devise all the remainder or residue of my estate which shall be remaining, after paying the before-mentioned legacies, to my dearly beloved brother, Samuel Taylor, of the parish of Drumblait and shire of Aberdeen, in Scotland, and to my beloved sister, Mary Taylor, of the same place, share and share alike, provided they shall both be alive at the time of my decease, and have issue, which issue, after their respective deaths, shall share the same equally; but if either the said Samuel Taylor or said Mary Taylor shall die without issue, then the survivor, or, if both shall be dead, the issue of the said Samuel Taylor or Mary Taylor, whichsoever shall leave the same, shall be entitled to the whole of the said remainder or residue of my said estate, share and share alike.

'And sixthly and lastly, I do hereby nominate, constitute, and appoint my friends, Samuel Savage, Esquire, of the district of Abbeville and State of South Carolina, Patrick McDowell, of the city of Savannah and State of Georgia, merchant, Duncan Matheson and William Ross, of the city of Augusta and State of Georgia, merchants, executors of this my last will and testament; hereby revoking and making void all former wills and testaments, at any time by me heretofore made, and do declare this to be my last will and testament.'

The executors all qualified as such. No bond was given, as neither the laws of the State nor the practice of the court required a bond from an executor under a will. This narrative will treat,

1st. Of the transactions in South Carolina where all the executors acted.

2d. Of the Kentucky lands, where Savage acted alone.

1. With respect to what was done in South Carolina.

On the 30th September, 1811, an inventory and appraisement were made of the goods and chattels of the deceased. But as the

amount was not added up, it cannot properly be stated; and on the 18th of January, 1812, an additional inventory and appraisement were made, which latter amounted to $808.12. A list of notes and accounts due to the estate was also handed in by Savage, as one of the executors. Ross also filed a list of notes, bonds, and open accounts belonging to the estate in his possession.

In January, 1812, the four executors made sales of the real and personal property, amounting to $24,011.46, and returned a list thereof to the Court of Ordinary. The law at that time did not require an account of sales to be recorded. After this, McDowell did not appear, by the record, to have any further participation in the settlement of the estate.

Savage, Matheson, and Ross, each filed separate accounts. Those of Matheson and Ross will be disposed of before taking up those of Savage.

Matheson filed but one account, namely, on the 30th March, 1813, by which a balance was due to the executor of $281.76.

Ross filed three accounts, namely:——

1813, March 30th. Balance due the estate, $4,034.80

1814, April 4th. Balance due the estate, 6,093.63

1815, April 4th. Balance due the estate 6,299.77

Ross does not appear to have filed any further accounts, and what became of this balance the record does not show. It does not appear to have been paid over to Savage; but the complainants, in their bill, disavowed all claim against Ross.

Savage filed ten accounts, one in each year till 1818, April 22.

The last-mentioned account was as follows:——

DR. The Estate of Wm. F. Taylor, deceased, with Samuel CR.

Savage, Executor.

1818.

March 11, V To cash paid ordinary, $ 1.75

V To cash paid Butler & Brooks, 23.62 1/2

V To cash paid Butler & Hammond, 16.00

14, V To cash paid James Day, 2.50

To expenses to Edgefield court-house,

and to Augusta, 25.25

22, V To cash paid M. Mims, clerk, & c.,

for cost, 17.18 3/4

V To cash paid the clerk, 1.56 1/4

---------

87.87 1/2

My commissions on $10,393.42 1/2, at 2 1/2, 259.82

My commissions on 87.87 1/2, 2.18

---------

$ 349.87 1/2

-----------

March 22, V Cash paid the ordinary, 1.18 3/4

Expenses at Edgefield court-house, 5.00

April 22, V Cash paid Adam Hutchinson, attorney

for the parties interested, 10,037.36 1/4

-------------

$ 10,043.55

1818.

March 14, By balance due the estate, as per last

return, 9,966.97 1/2

By cash received of adm'r L. Hammond, 180.00

By cash received of adm'r Wm. Hall, it

being the balance of his bond and

interest, after deducting $200, under

a compromise of a land case, 246.45

------------

$ 10,393.42 1/2

Deduct amount from the other side, 349.87 1/2

-------------

$ 10,043.55

-------------

Amount balanced, $ 10,043.55

The account current, received in the ordinary's office on the oath of Samuel Savage, executor, the 22d April, 1818, and find vouchers for every item marked with the letter V on the left-hand margin.

JON. SIMKINS, O. E. D.

At the time of filing this account, there was filed also the following receipt:——

'Received of Samuel Savage, executor of the estate of Wm. F. Taylor, deceased, the sum of ten thousand and thirty-seven dollars and thirty-six and one quarter cents, in full of his actings and doings on the said estate up to this date, as per his account current this day rendered to the ordinary of Edgefield district. I say, received by me this twenty-second of April, anno Domini 1818.

SAMUEL TAYLOR,

WILLIAM RAINEY, and

MARY RAINEY, his wife.

Per ADAM HUTCHINSON,

Their Attorney.'

These accounts of Savage have been stated together, in order not to make a break in the narrative. It will be necessary now to go back in the order of time.

On the 14th of February, 1815, Savage applied, by petition, to one of the judges of the Court of Equity in South Carolina for authority to loan out the funds of the estate, praying the court to make such order as might seem equitable and just. Whereupon the court passed an order that the petitioner should lend out the money on a credit of twelve months, on such good security as he might approve of.

At some time in the year 1815, Samuel Taylor came to the United States.

On the 9th of February, 1816, he executed the following paper:——

'GEORGIA, City of Augusta:

'Whereas, Samuel Savage, one of the executors of the last will and testament of William F. Taylor, late of Edgefield district, South Carolina, deceased, and Samuel Taylor, brother of the said William F. Taylor,...