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William Taylor, George Taylor, William Primrose, and Eliza, his Wife, George Porter, and Elspet, his Wife, William Rainey, Alexander Rainey, and Elizabeth Rainey, Complainants and Appellants, v. Vincent M. Benham, Administrator de bonis non, with the Will U.S. 233 (1847)

handle is hein.slavery/ussccases0307 and id is 1 raw text is: JANUARY TERM, 1847. 233 Taylor et al. r. Benham. WLLAM TAYLOR, GEORGE TAYLOR, WILLIAM PRIMROSE, AND ELIZA, HIS WIFE, GEORGE PORTER, AND ELSPET, HIS -WIFE, WILLIAM RAINEY, ALEXANDER RAINEY, AND ELIZABETH RAINEY, COMPLAIN- ANTS AND APPELLANTS, V. VINCENT 1M. BENHrA,, ADMINISTRATOR DE BONIS NON, WITH THE WILL ANNEXED, OF SAMUEL SAVAGE, DECEASED, RESPONDENT AND APPELLEE. VINCENT M. BENHAM, &d.c, v. GEORGE TAYLOR, &c. By the laws of Alabama, an administrator de honis 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 b2 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 'arties 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 o; or may be in any wise be- longing 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 gut 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 t6. 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 trus- tee,-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, al- though they were supposed to be also the eestui gue 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, gold 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 iequired as there would be if the power to sell were a naked one, and not coupled with an interest or trust. Apower to sell, coupled either with an interest or trust, survives to the surviving executor. So also, if all the trdstees 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 qua 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 ex- ecutor, is not an avoidance of the first sale by the executor. But the executor is not responsible for more monoy than he received, with interest, unless in case of very supine negligence or wilful default. A claim for dmgo would also be subject to the operation of the statute of limitations. 20*

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