Gregg v. Bethea , 6 Port. 9 ( 1837 )

GOLDTHWAITE, J.

The death of Strother R. Gregg, one of the plaintiffs in error, is suggested, and it is now moved to continue the case, in order to make his personal representatives parties to this suit, when known.

At common law, a writ of error abated, where one of several plaintiffs in error died before errors assigned ; in which case, the defendant in error would have had to sue out a scire facias quare executionem non, against the survivors, to revive the judgment, before he could have sued out execution ; as á writ of error is a supersedeas, which continues until the court is apprised of the abatement of the writ, by a scire facias, — Spencer vs Rutland;^* Howard vs Pift.^† But if he die after, the writ did not abate, but the defendant might join in error, and proceed to have the judgment affirmed, if not erroneous, and where there was only one plaintiff in error, might afterwards revive it, against his executors.^*

The present suit originated in the County court, and the deceased party became a party to the judgment rendered in the Circuit court, in consequence of his being a surety in the writ of error bond; but this circumstance does not place him in a situation different from-that which he would have occupied, had he been a party to the original judgment; — having once become associated with his co-piaintiff in error by the judgment below, they can only be disconnected in the same manner as all other co-plaintiffs in error. It was thought, that if the motion had been with reference to a co-plaintiff, who was the party against whom the original judgment had been rendered, in the County court, some difficulty would be presented, as, in case of reversal, the case wight have to be remanded for further proceedings, in another court, where the personal representatives of the deceased co-plaintiff in error would necessarily have to be made parties. But it is not considered, that even inthatcase, would it be necessary to call in the personal representative into this court, as our statúte^† provides, that “where there are two or more plaintiffs or defendants to any suit or suits, in any court of this State, and one or moi'e of them die, if the cause of such action shall ■ survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated ; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants.”

In this case, the writ of error is sued out by both plaintiffs in error, and it is to be considered as a new action :^* and therefore, fully within the letter and spirit of the act before recited. The suggestion of the death being made in the record, is all winch is required, and the case must proceed in the name of the survivor. The motion is, therefore, denied.

And the case was then heard; upon its merits, and the opinion of the court delivered by

ORMOND, J.

This was a proceeding instituted in the County coui’t of Wilcox, by the defendant, as guardian of George H. Strother, against Robert H. Gregg, as executor of the last will of Lucy Strother, to have a sum of money set apart for the maintenance of the infant. The County court decreed in favor of the guardian, from which judgment, the plaintiffs in error prosecuted a writ of error to the Circuit court of Wilcox county, — where the judgment of the County court was affirmed. From that judgment a writ of error has heen taken to this court.

The errors assigned here are the same assigned in the Circuit court, and in addition thereto, that the County court had no jurisdiction of the case. The assignments of error will be taken up in their natural order, without regard to their position on the record. And, first, had the County Court jurisdiction l

In England, all power over this subject is vested in the Chancellor : — he is the guardian, in effect of all the infants in the realm; but in this State, the Judge of the County court is invested with ample power to determine almost all questions which can arise, in which a minor is concerned.

By an act, passed in eighteen hundred and seven,^† it is provided, that the County court shall have authority from time to time, to take cognizance of all matters concerning orphans and their estates, &c. A more plenary jurisdiction than this act confers, over the subject matter in question, can not well be conceived, unless it can be shewn, that the question of setting apart a portion of the estate of the orphan, for his maintenance, is not a matter appertaining to his estate. But, indepéndent of this general grant of power, the legislature, by an act passed in eighteen hundred and six,^* enacted, that if the personal estate, and rents and profits of the real estate, be insufficient for the maintenance and education of the \jard, the Orphans’ court may order a sale of the lands, &c. Here the power is not only expressly given, to appropriate the profits of the real and personal estate for the maintenance of the ward; but the high and delicate trust is conferred on the Orphans’ court, to sell for that purpose, the lands of infants, — a power which is rarely, if ever, exercised by the British Chancellor. There doubtless, may be cases, in which, from the peculiar nature of the trust, the County court could not act, and application would have to be made to the Chancellor. This is not one of those cases.

The next question which arises, is as to the legal effect o.f the bequest, under which the orphan claims. It is insisted, that the legacy does not vest until he attains the age of twenty-one years, — and that, therefore, he is not entitled to the profits of the estate during minority. The clause of the will reads thus :

“ I will and bequeath unto my beloved grandson, George H. Strother, three negro girls, viz: Nance, Betsy and Susannah ; also one bed, and two cows and calves: to be given to him at the age of twenty-one years, by my executor, and executors, hereafter to be named: Provided, that, should my said grandson die, leaving-no widow, or legally begotten children, then said negro girls, with their increase, shall return to my three daughters, Mary Ann,” <*fcc.

The general rule, applicable to this class of cases, is, that where a legacy is given to be paid, or payable at a particular true, or when the legatee shall attain a particular age, the legacy is vested — and, should he die before the happening of the event, the interest in the legacy will pass to his personal representatives. The condition which is annexed, relates only to the .time of payment, but the legacy is vested by the express terms of the gift. Wherever the time is annexed to the payment of the legacy and there is no ex-express gift of the legacy, the legacy does not vest, until the happening of the event; but even in such cases, if, from other parts of the will, it can be gathered, that the testator intended that the legacy should vest immediately, such intention will control the general rule: for the rule itself, has been devised as a mean of expounding the will, and must, of course, yield, to the expressed intention of the testator. So in this case, were it otherwise doubtful when this legacy should vest, other parts of the will explain the intention of the testator fully : for she provides, by a previous part of the will, that her negroes, not specially bequeathed, shall remain on the jdantaticn, until her debts are fully satisfied, — thereby shewing, very conclusively, that she did not intend the product of the labor of the negroes in question, to fall into her estate, during the minority of her grandson.^*

It is insisted, that the remainder in this bequest will prevent its vesting, so as to entitle the legatee to the annual product of the slaves; but it is not perceived how it can have that effect. The remainder can only be supported as an executory devise, and that may be limited, as it is in this case, after the creation of a fee. It may be added, that this species of remainder supposes that the particular estate is vested, as it is in this case.

A much more difficult question is presented by the first assignment of errors, — which insists that the Coui’t erred in giving judgment against the executor, before final settlement of the estate. By the act of eighteen hundred and twelve,^* it is provided that any person entitled to a legacy or estate, by will, may at any time after eighteen months from granting letters of administration, apply, by petition, to the County court, for distribution, &c.

The probate of the will, in this case, was in eighteen hundred and twenty-one: this application was made in eighteen hundred and thirty-five. The executor files his account of the hire of the negroes of the infant, and on being cited to appear at the Orphans court, to shew cause, against setting this money apart for the maintenance of the infant, he does not appeal’, and a decree is made against him. After such a lapse of time, and without any defence on his part, the inference is irresistible, that the estate has been settled.

In all cases, when, after the lapse of eighteen months, an application is made for distribution by the legatee or distributee, it devolves on the executor to shew that the distribution should not be made. He has possession of the estate, knows its condition, and must be held to show the reasons why distribution should not be made. Our determination, in this case, is founded on the lapse of time, and his failure to shew cause against it, which is equivalent to an admission that the estate is settled.

The third assignment of error, maintains that there is error in giving judgment against the executor, for the amount of the inventory, without allowing for bad debts. On reference to the inventory, it appears to be simply an. account for the hire of negroes, from the year'eighteen hundred and twenty-two, to the year eighteen hundred and thirty-five. Credits are claimed in this account for expenses. It cannot be presumed, when an account of this kind is filed as the basis of a settlement, that any part of the claims were bad, in the absence of any shewing to that effect. It must always be taken most strongly against the party making it.

It is also insisted in argument, that commissions should have been allowed the executor, for bis trouble, &c. The answer to this is, that none were claimed.

But it was error, for the guardian to make the application in his own name, or for the Court to render judgment in his favor. The application should have been in the name of the ward, and judgment in his favor — as was decided by this court, at its last term, in the case of Mason vs McLeod^* and again, at this term, in the case of Sutherland vs Goff.^† For this .cause the judgment must be reversed.

* 1 Salk, 231.

† 1 Let Raym. 244.

* 2 Wms. Saund. 101, note 10 and p.

† Aikin's Dig 250

* 2 Wms. Saund. 101, note 1, g.

† Aikin’s Digest, 250.

* Aikin’s Digest, 221.

* 1 Vesey sen. 217; 11 Vesey 498; 8 Vesey, jun. 557; 3 Salk. 415; 3 Porter, 350.

* Aikin’s Digest, 155.

* 5 Porter, 223.

† Ibid, 508