Elrod v. Lancaster
| Decision Date | 30 April 1859 |
| Citation | 39 Tenn. 571 |
| Parties | SAMUEL ELROD et al. v. SAMUEL LANCASTER. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM MADISON.
A decree was pronounced at the December term, 1858, by Chancellor Williams in favor of the complainants. The defendants appealed.
M. & H. Brown, for the complainants; Stephens & Stephens, for the defendants.
The father of complainants died in Jackson, in 1839, leaving a will, with defendant, his executor, and a large estate. The will was proved and executed by the defendant. The deceased had been a merchant for a number of years, and had succeeded in accumulating an estate of $50,000, or $60,000. The most of his fortune consisted in money and choses in action, and the settlement of the business was, necessarily, slow and troublesome. There were a vast number of small debts, and the ultimate loss by insolvencies was very great, probably $30,000 or $40,000. The testator left a wife and six childdren, all of whom were then, and four of them yet, under age. The widow married Barr, and, on the 24th of January, 1845, they filed their bill in the Chancery Court, against the executors and the children, the latter all then being minors, for the settlement of the estate, so far as to obtain the part to which they were entitled under the will, which was one equal seventh in the event of marriage. In that suit an account of the estate was taken, and the part of the complainants paid over, and the balance retained by the executor in his new character of guardian, which he assumed at the request of the mother of the children soon after the decree. After that he made his reports and settlements, as guardian, in the County Court.
In 1850, certain real estate was sold upon the petition of Lancaster and Lyon, who had then become guardians of the oldest son. Some, and perhaps most of the property, was bought by one or other of the guardians. This bill was filed on the 3d of March, 1854, for two main objects.
1. To have a general account and settlement of the estate, both as executor and guardian, against Lancaster, charging various specific abuses of his trust.
2. To set aside the sale of the lots in Jackson, and recover them back, with rents.
As to the first ground, in addition to the general and specific denial of the charges, the defendant relies upon the settlement and decree in the Chancery suit of 1845, as a bar to this bill, so far as it seeks to reopen his accounts as executor. We are not prepared, under the circumstances, to give it that effect, except as to Barr and wife. The other complainants were all infants, and the object of the proceeding was not to assign to them their parts of the estate, but only to obtain the one-seventh of the complainants, and leave that of the minors where it was. A settlement of the whole administration was only necessary for that purpose. It is true, that a decree between defendants will be conclusive under certain circumstances, and in proper cases, where an antagonism exists between them, so as to make them actors against each other. But we do not regard this as such a case. Against all the rules of propriety, the executor was appointed to act as guardian ad litem for the infants, they having no general guardian at that time. Their interests and his were directly in conflict, and the substance of it was that he assumed to act for them against himself. The fact that his appointment was recommended in the bill, can make no difference. It all seems to have been a hurried proceeding, got up by himself. The bill was filed on the 24th of January, 1845, on which day he was appointed by the clerk and master, guardian ad litem. But his answer, as executor, was prepared and sworn to on the 23d, and on the same day, prior to the filing of the bill, and before his appointment, his answer, as guardian, referring to, and admitting to be correct, his answer as executor, was drawn up and...
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