State Ex Rel. Ramsay v. Hanner ( 1870 )

Rbadé, J.

The plaintiff’s first exception is overruled. 'The act of 1867, ch. 59, authorizes administrators and executors to pay other debts after suit is brought, and without judgment.' •

II. The second exception is allowed. The land, worth .$3500, was purchased by the executor with a debt of $900, due the estate of the testator, and a deed was taken to himself. “ If an estate or fund has been changed by breach of trust, the cestui que trust may at his option wave its restoration, and may attach and follow it in its altered form: e. g. if a trustee or executor purchase an estate with his trust money or assets, and the fact of his having done so be admitted or distinctly proved, the parties interested in the money may claim the estateAdams Eq. 143.

III. The third exception is overruled. The estate was a very large one, much more than sufficient to pay all the debts. Eight thousand three hundred dollars in Confederate treasury notes were in the executor’s hands, and the creditors would not receive them in payment of their claims. What was the executor to do ? If he had kept the money it would have been worthless. He could not invest it with safety; he supposed that it would eventually belong to the legatees, and therefore, as the best thing he conld do under the circumstances, he paid it over to them. The only seeming error in this is, that,- he did not take refunding bonds. A sufficient excuse tor this neglect was, that in 1864 no one would have given a refunding bond for Confederate money, and no one could have supposed that he had not retained an abundance to pay debts, and thatit turned out otherwiseby the accident of the result of the war.

IV. The fourth exception is overruled so far as the value of the slaves is concerned, and allowed as to the value of the other personal property. The executor could not have sold slaves in 1864, except for Confederate money, and that would have been worthless. He did well to keep the slaves, and their emancipation was an accident, for which he is not reponsible: Fike v. Green, at this term. But it is otherwise with regard to the other property.

V. The fifth exception is abandoned.

VI. The sixth exception is overruled. The executor was not obliged to administer on the insolvent estate of E. W. Palmer, and no one else would.

VII. The seventh exception is overruled, except as to'the small sum of specie. The other effects were worthless, without the fault of the executor.

VHI. The eighth exception is overruled, for the reasons stated in disposing of the other exceptions.

There is error. This will be certified, &c.

Pee Cubiam. Error.