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Decided, March Matthews Executor of Garnett against Noel and

6th, 1817.

1. A Testator directed that,af

years from his

tation called Farmer's Hall, which he then specifically de

vised: in such

&c. than on such

expenses of ad

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others.

THE Appellees, in August, 1815, filed their Bill, in the ter his debts were Superior Court of Chancery for the Fredericksburg District, paid, all against the Appellant and Robert Garnett; stating, that Henry slaves,&c.be fur · nished for three Garnett, Testator of the Appellant, departed this life about estate, to raise August. 1811, having by his Will devised as follows: “After certain pecunia- my debts being paid, that all my slaves, work creatures, planry legacies, by working his plan tation utensils, and provisions sufficient for their support annually, be furnished for three years, from my estate, to raise the sum of five hundred pounds for Nancy and Austin Garnett, children of Austin Garnell, (two of the Appellees.) case, those Le" and also five hundred pounds to be equally divided between gacies were no farther chargea-" the children of Robert Garnett, (the other Appellees :) after ble on the slaves, that sum being raised by working the plantation called Farpart thereof as" mer's Hall, I then devise the said plantation, one half to should remain " after the pay Robert Garnett, (one of the defendants,) and the other half to ment of debts and << Nancy and Austin Garnett," (the legatees before mentionministration, and ed :) that, by the said Will, several persons were named Exeof a general cutors thereof, with a direction that no security should be charge on the estate by ano required of them; and, by a Codicil, the Appellant Thomas ther clause in the Will; and Matthews was also named an Executor: that the Executors must named in the body of the Will refused to qualify, and the said were Matthews alone took probate thereof, and was permitted by Essex County Court to qualify without security; that he as by the use of Executor possessed himself immediately of all the real and of slaves, &c. personal estate of the Testator, claiming to hold the real estate, on the Farmer's and especially the plantation called “Farmer's Hall" in virtue Hall Plantation; with liberty to of the clause aforesaid: that he hath sold off the perishable sever, and apply to that use, any estate of considerable value, and had ever since retained all the the real estate, negroes, &c. and received all their profits: expiration of the that the three years mentioned in said clause had elapsed, and of that much more than a sum sufficient to pay the said legacies, had been raised by working the said plantation called Farmer's Hall; that, though this was the case, the Appellant had not be taken in such paid any part of the legacies, and, though frequently required decree, for to surrender the said plantation to the devisees, in order that payment of those lepartition might be made, he still retained the possession of it:

therefore

abate so far, as

the same

not raised within the three years,

the said residue

crops on ground at the

said

term

three years.

2. What ac. counts ought to

case, before a

gacies, ought to be pronounced.

MARCH,

1817.

that the Appellants had misapplied the profits of the real and proceeds of the personal estate; that he had little or no estate, and was unable to reimburse the sums, so misapplied, to the Matthews, &c. parties entitled thereto.

The prayer of the Bill was, that the Appellant might be restrained from receiving the future profits of the estate, unless he gave ample security for the faithful application of them; that he might be compelled to surrender the estate called Farmer's Hall, in order that partition thereof might be made, according to the direction of the Will, between the plaintiffs Austin and Nancy, and the defendant Robert Garnett; that he might render an account of the profits thereof, and be decreed to pay the plaintiffs their respective legacies aforesaid, with interest from the time they ought to have been paid; and for general relief.

To this Bill, the Appellant filed his answer, admitting most of the allegations, but controverting the construction of the Will contended for by the plaintiffs; stating that he had been advised that the proper construction thereof was, not that the plantation should be worked, &c. for three years after the Testator's death, but for and during three years after the Testator's debts were paid; and, as the debts had not been paid, the defendant had continued the cultivation of the estate; denying that he had been able to raise a fund sufficient to pay the debts and legacies; and alleging that, in consequence of the Embargo and the War, but little profit had been made from the estate.

The plaintiffs replied generally to this answer. The Bill was taken for confessed as to the defendant Robert Garnett.

In the Will of the Testator, (which was made an Exhibit in the cause) there was a provision that Hannah S. Neale should "have liberty to live in the mansion house, to have "full use of all the land, houses, &c. from the cross fence, run

ning from Lydia Brook's to the White Oak Swamp, during "the term of three years; that, (after raising the legacies to "the plaintiffs,) Maria, Washington, and Fenton Mariner, a son " and daughters of Anne Mariner, should have, in young negroes, to the amount of five hundred pounds, &c.; that, if, "from his personal estate, more money was raised than would “discharge his debts, it be laid out in lands or young negroes,

V.

Noel and others.

MARCH, 1817.

Matthews, &c.

V.

Noel and others.

"as might be judged best by his Executors, for the interest of "his legatees, &c.; that Hannah S. Neale be furnished with a "sufficient quantity of stock for her use, and the use of her family; that every necessary be furnished her by his Exe"cutors, so that she might never want, and that whatever " timber she might want, and firewood, be furnished her from "the rest of his lands."

An account of the Appellant's Executorship, made out by Commissioners, appointed by the County Court of Essex since the institution of the suit, and approved by that Court, was also exhibited; according to which, it appeared that the Appellant had sold produce from the estate to the amount of upwards of 2000l. which he claimed to have disbursed in the payment of debts, and some legacies, particularly that to the Mariners; and a balance of 3391. 15s. 3d. appeared to be due from the estate to him.

Sundry affidavits were read, on the hearing, without exception. The principal facts proved, were that the Appellant had very little property; that Farmer's Hall was a valuable and productive estate; the smallest estimate of its annual product being 500 barrels of corn, and 700 bushels of wheat; and that the Testator had a large personal estate, there being filteen crop hands, &c.

Chancellor NELSON decreed, that the Appellant should, after the 1st of January, 1817, surrender the estate called Farmer's Hall, to certain Commissioners, for the purpose of partitioning the same between the plaintiffs Nancy and Austin, and the defendant Robert Garnett, according to the directions of the Will; that he should pay to the plaintiffs the legacies, that by the Will were to be raised by working the said estate called Farmer's Hall, with interest thereon from the date of the decree; it being manifest from the account he exhibited, that more than the amount of those legacies had been so raised;" that a Commissioner should take an account of the monies so raised, for the purpose of ascertaining the time, when the amount of them reached to 1000l. and inquire what was a reasonable rent of the said estate, since the said sum was so raised; reserving to the plaintiffs the liberty of applying for a decree, (when the account should be reported,) for an equivalent for the interest on their respective legacies, from the time

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they should be thereby shewn to have been raised, to the time from which interest was by the decree given thereon.

MARCH,

1817.

V.

From this Decree an appeal was allowed by this Court, on Matthews, &c. petition of the Appellant; in which petition, the decree was alleged to be erroneous, for the following reasons:

1st, Because, by the terms of the Will, the lands, slaves, &c. were to be worked three years after the debts were paid; plainly importing that the debts were first to be paid.

2d, Because, even if the Will admitted of a different construction, the slaves, stock, &c. were assets in the hands of the Executor, for the payment of the Testator's debts, and their profits ought by law to be applied to the discharge of debts, even contrary to the intention of the Testator, if he had intended to prefer his legatees to his creditors.

3d, Because, if these profits had been improperly applied to the payment of debts; yet, as those debts were all of them chargeable on the personal estate, and many of them chargeable on the real, the Executor, being defendant in Equity, was entitled to stand in the place of the creditors, whose claims he had satisfied.

4th, Because it was evident that the Executor acted for the benefit of all parties, by keeping the estate together, instead of selling the personal property, as he ought to have done, for the payment of debts, in which event there would have been no fund for the legacies claimed by the plaintiffs.

5th, Because, on the principles contended for by the plaintiffs, no decree for the payment of any sum of money, or for delivery of possession of the land ought to have been rendered, until an account was taken of the Executorship, that it might appear how much of the mixed fund, consisting of the profits of the lands, slaves, &c. was to be credited to the lands; how much to the slaves and other personal estate; and what fund there was for the payment of the other legacies.

The Petitioner also submitted a question, whether the other legatees, who were concerned in interest, ought not to have been parties.

Wickham for the Appellant, argued in support of these positions; and, in discussing the third point, referred to Eppes v. Randolph, 2 Call, 125–190; Tinsley v. Anderson, 3 Call 329—

Noel and others.

MARCH, 1817.

Matthews, &c.

V.

Noel and others.

333; and Foster and Wife v. Crenshaw's Executors, 3 Munf.

514-521.

Stanard, for the Appellees, insisted, 1st, That by the Will, there was only an implied charge on the estate called Farmer's Hall, for the payment of debts; a charge, which operated on the land in the hands of the devisees, in the event, that the personal estate proved inadequate to the payment of debts, but did not put the said estate into the hands of the Executor, that its profits might be applied to exonerate the personal estate from (a) Bowdler v. the payment of debts (a)

Smith, Prec.Ch. 264; Tompkins

2d. The Appellant was not entitled under the Will to hold v. Tompkins.Ib. the estate called Farmer's Hall for any purpose; (unless to 397; Hazlewood

Pope, 3 P. take the crop growing at the death of the Testator;) the Wms.324; Bick- effect of the Will, on a sound construction of it, being to charge nell v. Page, 2 Atk. 79; Bridge the land, in the hands of the devisees, with the 1000l. to be raised man v. Dove, 3 Atk. 202; Earl from it, with the assistance of such of his negroes, work creaof Inchiquin v tures, &c. and provisions for their support, as, after the payment 33; Duke of An of debts, could be furnished for that purpose.

French, Ambl.

caster v. Mayor, 1 Bro. Ch. Rep. 454.

3d. If the Executor had, under the Will, any interest in or control over the said estate, it was limited to the object of raising the 1000l. for the legacies, and to the time of three years for the attainment of that object.

4th. Even if the Executor could hold the estate longer, than three years, to raise the 1000l. yet it was competent to the Court of Chancery, without the interposition of an account before a Commissioner, to inquire into and ascertain the fact whether it had been raised; and, as the account he exhibited, shewed, manifestly, and on its face, that a much larger amount, than that sum, had been raised, it was proper for the Court, this fact being so ascertained, to decree as well payment of the legacies, as the surrender of the land; especially under the cir cumstances that the Executor was of very limited responsibility, and the account and evidence shewed many acts of mal-administration.

5th. As to parties, it appears from Coop. Eq. p. 39, that all the Legatees need not be parties, except where a residuum is to be divided.(1)

(1) Note. See also Branch's Adm'x, v. Brooke's Adm'r. 3 Munf. 43.

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