Anderson v. Earle
| Decision Date | 30 March 1878 |
| Citation | 9 S.C. 460 |
| Parties | ANDERSON v. EARLE. |
| Court | South Carolina Supreme Court |
Where one is both executor of a will and trustee thereunder of a legacy given by the will, his receipt of the legacy vests the fund in him as trustee, and his co-executor is no longer liable for it.
Where A and B were appointed executors of a will and trustees thereunder, and B qualified as executor and accepted the trust, and then A qualified as executor and paid the trust money to B, taking his receipt therefor as trustee Held , That this was not only evidence that A had not accepted the trust, but was also conclusive evidence that he had repudiated it, and, consequently, that A was not liable to account to the cestui que trusts for the trust fund paid to B.
An executor held not liable for the devastavit of his co-executor.
One appointed both executor and trustee by the will Held , Upon the evidence, to have accepted the trust, and by such acceptance to have been discharged from liability as executor.
Where one is appointed by the will both executor and trustee, the mere fact that he qualified as executor is not proof that he accepted the trust.
The evidence given in the cause held insufficient to prove that one appointed by the will both executor and trustee, and who had qualified as executor, had accepted the trust.
BEFORE NORTHROP, J., AT SPARTANBURG, APRIL, 1872.
This was a bill in equity by David Anderson, executor of the last will and testament of Thomas P. Brockman, against Henrietta M. Earle and Alexander C. Earle, her husband.
The case will be understood from the opinion of the Court.
Bobo & Carlisle, Simpson , for appellants.
Dunkin & Cleveland, Earle & Wells, Thomson , contra.
Thomas P. Brockman, being possessed of quite a large estate, died in 1859, leaving a will, of which his son Benjamin T. Brockman and his son-in-law, the plaintiff, were named executors. By his will he gives to his wife, during her natural life, a considerable portion of his estate, which, at her death, was to be equally divided amongst his children, except Mrs. Hudson, upon " the same trusts that are provided for in the preceding clauses" of his will. As to the shares of his daughters, after making various provisions for his other children, the testator provides for his two daughters, one of whom is the defendant, Mrs. Earle, in the eighth clause of the will, in the following words:
In the ninth clause of the will the testator says: " It is my will, at my death, that all my property be sold (except what I have willed to my wife) on such credit as the Ordinary and my executors may think best, and the proceeds thereof, after the legacies already willed are paid, shall be equally divided among all my children, (except Keziah A. Hudson, who, I think, through her husband, S. P. Hudson, has received more than her share,) ** and my executors will hold the [here follows a blank in the copy of the will printed in the " " " " " case," doubtless to be filled with the word " amounts" or " shares," ] giving to Henrietta and Eloise, in the same manner as the first, amounts willed for their use, with the same powers." The plaintiff, Anderson, at first declined to qualify as executor, and Benjamin T. Brockman alone qualified as such soon after the death of the testator, took charge of the estate and proceeded in the administration of the same until some time in 1861, when he went into the army. It seems, however, that by sales and collections he had reduced into his possession a very large part, if not the whole, of the assets of the estate, except that given to the widow, which constituted an amount mach more than sufficient to pay all the pecuniary legacies and leave a considerable balance to be divided amongst the children, as provided for in the ninth clause of the will. The widow died in 1861, and Benjamin T. Brockman being then absent in the army the plaintiff qualified as executor of Thomas P. Brockman, took possession of the property which the widow left as part of the estate of Thomas P. Brockman, and, under the terms of his will, sold the same, and, after having advertised for creditors to come in and paid off such as were properly presented, proceeded to divide the balance amongst those entitled under the will. In making this division it was assumed that the share of each would amount to one thousand dollars, and the plaintiff accordingly paid that amount to B. T. Brockman, taking a receipt therefor, of which the following is a copy:
Some time in 1864 B. T. Brockman died, leaving a will, of which the plaintiff is the qualified executor. The estate of B. T. Brockman proving to be wholly insolvent, occasioned, as is alleged, by the results of war, the defendant, Mrs. Earle, now seeks to hold the plaintiff responsible for her legacies under the will, and the Circuit Judge having so decided the plaintiff appeals.
It is difficult to understand how, in any aspect of the case, the plaintiff can be made liable for the legacy of two thousand dollars. He cannot be made liable as co-executor, because, in the first place, he was not co-executor at the time the money came into the hands of the other executor; but, even if he had been, he could not be so made liable under the facts as presented in this case.
The rule is, as stated by Harper,...
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