Taylor v. Benham
46 U.S. 233

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U.S. Supreme Court

Taylor v. Benham, 46 U.S. 5 How. 233 233 (1847)

Taylor v. Benham

46 U.S. (5 How.) 233


By the laws of Alabama, an administrator de bonis non with the will annexed is liable for assets in the hands of a former executor.

Where an executor has settled what appears to be a final account, it must be a very strong case of fraud proved in such a settlement, or of clear accident or mistake, to make it just to reopen and revise the account after the lapse of twenty years and the death of the parties concerned.

Where a person who held land as trustee directed by his will that the whole of the property that he may die seized and possessed of or may be in any wise belonging to him should be sold, the executors had power to sell the land held in trust as well as that belonging to the testator in his own right.

The trustee, by his will, having appointed residuary legatees, must be considered as devising the trust as well as the lands to these residuary legatees, who thus became themselves trustees for the original cestui que trust.

The power in the executors to sell was a power coupled with a trust. It might also be considered as a power coupled with an interest. The distinction between these powers adverted to.

In order to avoid an escheat and carry out the wishes of the testator, a court of equity will, if necessary, consider land as money where a testator who is a trustee has directed the land to be sold, and will direct the proceeds to be given to the cestui que trust.

Whether the executor had a power to sell coupled with a trust or a power coupled with an interest, the residuary legatees took by devise and not by descent, although they were supposed to be also the cestui que trusts.

If, therefore, they were aliens, the land did not escheat on the death of the trustee, because land taken by devise does not escheat until office found, although land cast by descent does.

The testator, who held the lands as trustee, having died in South Carolina, the executor took out letters testamentary in that state, sold the lands which were in Kentucky, and then removed his residence to Alabama. He can be sued in Alabama for the proceeds of the lands, because his transactions in reference to them were not necessarily connected with the settlement of the estate under his letters testamentary.

Having sold the lands and received the consideration, he must be responsible to the residuary legatees.

An objection that only one executor sold (there having originally been four) cannot be sustained. Where a power is coupled with a trust, it is only necessary to show such a case as may in a court of equity make an agent or trustee liable to those for whom he acts. As much strictness is not required as there would be if the power to sell were a naked one, and not coupled with an interest or trust.

A power to sell coupled either with an interest or trust survives to the surviving executor. So also, if all the trustees or executors in such a case decline to act except one.

When a sale is made under a will, the omission to record the will does not vitiate the sale unless recording is made necessary by a local statute.

The land being in fact sold by the executor, claiming a right to do so under the will, and the purchase money being received by him, he is responsible to the cestui que trusts for the money thus received. The reception of an additional sum as purchase money by them, with a reservation of the right to sue the executor, is not an avoidance of the first sale by the executor.

But the executor is not responsible for more money than he received, with interest, unless in case of very supine negligence or willful default. A claim for damages would also be subject to the operation of the statute of limitations.

Page 46 U. S. 234

If the executor himself did not set up a claim as an offset for his personal expenses, his representative cannot do it under the circumstances of this case.

The cestui que trusts residing in a foreign country, the statute of limitations did not begin to run until a demand was made upon the executor for the money. His retaining it during that time is no evidence that he did not intend to account for it.

Although the bill made no distinction between the two characters in which the executor acted -- namely as executor proper and as executor having a power coupled with a trust -- yet, as no objection was taken in the court below upon this ground, this Court does not think that an amendment is imperatively necessary. The material facts are alleged upon which the claim rests.

These cases were twice before partially brought to the notice of the court, and are reported in 42 U. S. 1 How. 282, and 43 U. S. 2 How. 395.

The bill was originally filed by Samuel Taylor, the father of William, George, Eliza, and Elspet, together with his nephews, William Rainey, Alexander Rainey, and his niece, Elizabeth Rainey, against George M. Savage, executor of Samuel Savage, deceased. The object of the bill was to hold the estate of Samuel Savage responsible for certain moneys which it was alleged he had received during his lifetime in his capacity of executor of William F. Taylor, a citizen of the State of South Carolina, and also for his alleged neglect of lands in Kentucky, by which they were lost.

The record was very voluminous, as a great mass of evidence was filed in the court below, all of which was brought up to this Court.

The claim divided itself into two distinct branches, one arising from transactions in South Carolina, where William F. Taylor, the testator, died and where letters testamentary where taken out by Samuel Savage, and the other from transactions in the State of Kentucky. Each of these branches will be stated separately.

William F. Taylor resided in South Carolina, where he had been naturalized in 1796. Savage lived with him for some time, and afterwards continued to reside in the vicinity. In 1811, Taylor died, leaving a will which was admitted to probate on 11 August, 1811.

At the time of his death, the brother and sister of the testator -- namely, Samuel Taylor and Mary Taylor -- were both alive, married and had issue. Their children ultimately became parties to this suit, and their names are in the title of the case. Samuel Taylor had two sons, namely William and George, and two daughters, namely Eliza, who intermarried with William Primrose, and Elspet, who intermarried with George Porter. Mary Taylor intermarried with William Rainey, and her issue were two sons and a daughter, namely, William, Alexander, and Elizabeth.

The first section of William F. Taylor's will was as follows, namely:

Page 46 U. S. 235

"First. I do hereby order, will, and direct, that [on] the first day of January first after my decease or as near that day as can conveniently be, that the whole of the property that I may die seized and possessed of or may in any wise belong to me be sold on the following terms and conditions, that is to say, all the personal property on a credit of twelve months from the day of sale, purchasers giving notes of hand or bonds, with security to the satisfaction of my executors, and all landed or real property belonging or in any wise appertaining to me shall be sold on a credit of one, two, and three years, by equal installments, purchasers to give bond, bearing interest from the date, with securities to the satisfaction of my executors, and moreover a mortgage on the premises."

The second section gave a legacy to his negro woman Sylvia.

The third and fourth sections also bequeathed legacies to particular individuals.

The fifth and sixth sections were as follows:

"Fifthly. I do hereby will, order, give, grant and devise all the remainder or residue of my estate which shall be remaining after paying the before-mentioned legacies to my dearly beloved brother, Samuel Taylor, of the Parish of Drumblait and Shire of Aberdeen, in Scotland, and to my beloved sister, Mary Taylor, of the same place, share and share alike, provided they shall both be alive at the time of my decease, and have issue, which issue, after their respective deaths, shall share the same equally; but if either the said Samuel Taylor or said Mary Taylor shall die without issue, then the survivor, or, if both shall be dead, the issue of the said Samuel Taylor or Mary Taylor, whichsoever shall leave the same, shall be entitled to the whole of the said remainder or residue of my said estate, share and share alike."

"And sixthly and lastly, I do hereby nominate, constitute, and appoint my friends, Samuel Savage, Esquire, of the District of Abbeville and State of South Carolina, Patrick McDowell, of the City of Savannah and State of Georgia, merchant, Duncan Matheson and William Ross, of the City of Augusta and State of Georgia, merchants, executors of this my last will and testament, hereby revoking and making void all former wills and testaments, at any time by me heretofore made, and do declare this to be my last will and testament."

The executors all qualified as such. No bond was given, as neither the laws of the state nor the practice of the court required a bond from an executor under a will. This narrative will treat,

1st. Of the transactions in South Carolina where all the executors acted.

2d. Of the Kentucky lands, where Savage acted alone.

1. With respect to what was done in South Carolina.

On 30 September, 1811, an inventory and appraisement were made of the goods and chattels of the deceased. But as the

Page 46 U. S. 236

amount was not added up, it cannot properly be stated, and on 18 January, 1812, an additional inventory and appraisement were made, which latter amounted to $808.12. A list of notes and accounts due to the estate was also handed in by Savage, as one of the executors. Ross also filed a list of notes, bonds, and open accounts belonging to the estate in his possession.

In January, 1812, the four executors made sales of the real and personal property amounting to $24,011.46, and returned a list thereof to the Court of Ordinary. The law at that time did not require an account of sales to be recorded. After this, McDowell did not appear, by the record, to have any further participation in the settlement of the estate.

Savage, Matheson, and Ross, each filed separate accounts. Those of Matheson and Ross will be disposed of before taking up those of Savage.

Matheson filed but one account, namely, on 30 March, 1813, by which a balance was due to the executor of $281.76.

Ross filed three accounts, namely:

1813, March 30. Balance due the estate, $4,034.80

1814, April 4. Balance due the estate, 6,093.63

1815, April 4. Balance due the estate 6,299.77

Ross does not appear to have filed any further accounts, and what became of this balance the record does not show. It does not appear to have been paid over to Savage, but the complainants, in their bill, disavowed all claim against Ross.

Savage filed ten accounts, one in each year till 1818, April 22.

The last-mentioned account was as follows:

DR. The Estate of Wm. F. Taylor, deceased, with Samuel CR.

Savage, Executor


March 11, V To cash paid ordinary . . . . . . $ 1.75

V To cash paid Butler & Brooks. . . 23.62 1/2

V To cash paid Butler & Hammond . . 16.00

14, V To cash paid James Day. . . . . . 2.50

To expenses to Edgefield court-

house and to Augusta. . . . . . 25.25

22, V To cash paid M. Mims, clerk &c.

for cost. . . . . . . . . . . . . 17.18 3/4

V To cash paid the clerk. . . . . . 1.56 1/4


87.87 1/2

My commissions on $10,393.42 1/2,

at 2 1/2. . . . . . . . . . . . 259.82

My commissions on 87.87 1/2 . . . 2.18


$349.87 1/2


Page 46 U. S. 237

March 22, V Cash paid the ordinary. . . . . . 1.18 3/4

Expenses at Edgefield court-house 5.00

April 22, V Cash paid Adam Hutchinson, attorney

for the parties interested. . . 10,037.36 1/4


$ 10,043.55


March 14, By balance due the estate, as per

last return . . . . . . . . . . . 9,966.97 1/2

By cash received of adm'r L.

Hammond . . . . . . . . . . . . . 180.00

By cash received of adm'r Wm. Hall,

it being the balance of his bond

and interest, after deducting

$200 under a compromise of a

land case . . . . . . . . . . . . 246.45


$10,393.42 1/2

Deduct amount from the other side -349.87 1/2




Amount balanced $10,043.55

"The account current, received in the ordinary's office on the oath of Samuel Savage, executor, 22 April, 1818, and find vouchers for every item marked with the letter V on the left-hand margin."


At the time of filing this account, there was filed also the following receipt:

"Received of Samuel Savage, executor of the estate of Wm. F. Taylor, deceased, the sum of ten thousand and thirty-seven dollars and thirty-six and one quarter cents, in full of his actings and doings on the said estate up to this date, as per his account current this day rendered to the ordinary of Edgefield District. I say, received by me this twenty-second of April, anno. Domini 1818."



"MARY RAINEY, his wife"


"Their Attorney"

These accounts of Savage have been stated together in order not to make a break in the narrative. It will be necessary now to go back in the order of time.

On 14 February, 1815, Savage applied, by petition, to one of the judges of the Court of Equity in South Carolina for authority to loan out the funds of the estate, praying the court to make such order as might seem equitable and just. Whereupon the

Page 46 U. S. 238

court passed an order that the petitioner should lend out the money on a credit of twelve months, on such good security as he might approve of.

At some time in the year 1815, Samuel Taylor came to the United States.

On 9 February, 1816, he executed the following paper:

"GEORGIA, City of Augusta: "

"Whereas Samuel Savage, one of the executors of the last will and testament of William F. Taylor, late of Edgefield District, South Carolina, deceased, and Samuel Taylor, brother of the said William F. Taylor, deceased, for himself and in behalf of his sister, Mary Rainey, and her husband, William Rainey, of Scotland, being desirous of adjusting the affairs of said estate so far as have come to the hands of the said Samuel Savage, consent and agree that the said executor shall pay over to the said Samuel Taylor at this time as much money as he can spare, and on or before the first of April ensuing, to pay over all the money that may be collected on account of said estate. The said Samuel Taylor, for himself and in behalf of his said sister Mary and her said husband, doth hereby consent and agree, on receiving from the said executor all the moneys that can be collected by the first of April next, to allow the said executor two years from this time to close the remaining business of said estate, and for the money heretofore deposited in the Bank of Augusta and which has since been put out at interest, no interest will be required of the said executor for said money during the time the same remained in bank, and [on] all moneys which may be collected hereafter by the said executor no interest will be required, provided the same shall be paid over to the said Samuel Taylor, or his lawful agent, in a reasonable time after the same shall have been collected. The said executor hath permission to compromise all doubtful claims or debts due to the said William F. Taylor in his lifetime or any litigated cases relating to the recovery of lands in South Carolina."

"Given under my hand this 9 February, 1816."


"For himself and for my sister,"


"WILLIAM RAINEY, her husband"


On the day of the execution of the above, namely, 9 February, 1816, Savage paid to Taylor $5,300, and on 26 March following the further sum of $4,700, both of which are entered in the account settled on 3 February, 1817, with the Court of Ordinary.

On 2 April, 1816, Samuel Taylor executed a power of

Page 46 U. S. 239

attorney to Adam Hutchinson and Peter Bennock or either of them, authorizing them to receive on behalf of his sister, Mary Rainey, and her husband, William Rainey, all sums of money which were, are, or may become due and owing to the estate of the late William F. Taylor, and to sue for or prosecute all actions necessary for the recovery of a real estate in the State of Kentucky belonging to him, the said Taylor, and his sister.

On 26 September, 1817, Savage addressed a letter to Taylor representing that there was great difficulty in collecting money due to the estate, his anxiety to bring the matter to a settlement, that during the winter he would be able to pay three or four thousand dollars, but that he must advance it out of money arising from the sale of a tract of land of his own, &c.

On 22 April, 1818, Savage paid to Hutchison the sum of $10,037.36, as already mentioned.

In 1818, Savage went to Kentucky, and we pass on to the other branch of the complainants' claim, namely,

2. Transactions respecting Kentucky lands.

In order to understand the position of William Forbes Taylor, the testator, with regard to these lands, it will be necessary to recur to the original and subsequent titles.

On 25 May, 1786, Patrick Henry, Governor of Virginia, in consideration of six land office Treasury warrants as well as by virtue and in consideration of a military warrant under the King of Great Britain's proclamation of 1763, granted to Daniel Broadhead, Jr., a tract of land containing four thousand four hundred acres, beginning &c.

On 30 September, 1786, Broadhead conveyed the land to William Forbes, of the City of Philadelphia, in consideration of the sum of

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