Tipton v. Tipton's Executor's

Jonathan Tipton died in the year 1850, having made and published his last will and testament, wherein the defendants were appointed executors, who took upon themselves the administration of the assets. Among other bequests, was one in favor of the plaintiff of a horse, saddle and bridle, worth seventy-five dollars, to be paid to him as soon as he should arrive at the age of twenty-one years.

The petition alleges that the plaintiff has arrived at the age of twenty-one; that he has called on the executors to comply with the bequest in the will, but that they have refused to do so. It further alleges that the estate in the hands of the executors is amply sufficient to pay the debts, funeral expenses, and charges of administering, and besides, to pay the legacies.

The prayer is, that the defendants may pay the said legacy, and for general relief.

The answer of the defendants sets forth that the plaintiff was an orphan, bound as an apprentice to their testator, at the age of three years, by the chairman of the County Court of Yancey, until he should arrive at the age of twenty-one; at which time the said Jonathan was to give him a horse, saddle and bridle, worth seventy-five dollars; that the death of the testator occurred nearly three years before the expiration of the time of service, which was specified in the apprentice-bond, and immediately afterwards he quit the family and refused to render any further service. The defendants contend that the legacy was intended as an equivalent for the further service which the plaintiff was expected to render in his character of apprentice, and in lieu of what the testator was to give him under the apprentice-bond, when he should arrive at age; and they insist, that having failed for so great a length of time, when his services were most valuable, he thereby forfeited his legacy.

Nevertheless, they say that, being annoyed by the frequent demands of the plaintiff, they agreed to compromise, and did compromise it with him, by giving him a cow and calf, a sow and pigs, in full satisfaction of his claim for this legacy, and that he accepted the same as such.

The cause was heard upon the petition, answer and exhibits, and his Honor permitting parol evidence to be given, the compromise was proved as alleged in the answer, but it was also proved, that at the time it was made, the plaintiff was an infant.

Upon considering the case, the Court dismissed the petition, from which the plaintiff appealed to this Court. There is error in the decree below. The plaintiff was, by the proper authorities, bound as an apprentice to Jonathan Tipton, who died nearly three years before the expiration of the indentures, having previously made his last will, and which, by the defendants, was duly proved in the proper County, and they qualified as executrix and executor thereof. By his will, the testator bequeaths to the plaintiff seventy-five dollars, in a horse, saddle and bridle, at his age of twenty-one. The defendants deny that the petitioner has any right now, to call for his legacy, as he entered into a compromise with them, and received from them, in lieu of his legacy, a cow and calf, and sow and pigs. They further state in their answer, that at the time of this compromise, the petitioner was nineteen years of age.

There is no doubt, a legatee may receive from an executor, other things in lieu of the property devised to him; but to give to such compromise, such effect, the legatee must be of an age when the law authorises him to act for himself, and make a valid contract. As the petitioner was an infant, under the age of twenty-one, when it was made, this alleged compromise, therefore, was of no force and effect, and the petitioner is entitled to his legacy. But, though the compromise does not bind him, yet, having received a cow and calf, and sow and pigs, from the defendants, in place of his legacy, he cannot hold those and recover his full legacy; he must account for the property so received; and there must be a reference to the master, if the parties desire it, to ascertain the value of the property so received by the petitioner.

It was further alleged in the answer, that the legacy was intended by the testator to be in the place of the property he was bound by his bond to advance the petitioner at the expiration of his indentures, and that the legacy should not take effect, unless the petitioner should continue with the executrix all that time. There is nothing in the will to prove either suggestion.

The decree below, dismissing the petition, is reversed, and the case retained for further directions, and an account ordered.

PER CURIAM. Decree reversed.