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1810.

V.

Hines

1790, NOTHING. This might be because Howell died late in 1789; APRIL, but whether it were so or not does not appear; nor are we informed when he died. The next year we find the value of their hire Whitehorn (reasonable deductions for their maintenance and support being first made by the Commissioners) charged at six pounds. The next year 12/. 17s. 6d., the third year, 19. 9s. 1d. 3-4.; the average value of those three years being 12/. 15s. 6d. 1-2. per annum: but, if the year 1789 ought to be taken into the account, (as it would seem, from the Commissioners' thinking it necessary to notice that year,) the average value of the slave hire, after making due deductions for the support and maintenance of such as were young and chargeable, for those four years, was only 91. 11s. 7d. 3-4. Taking it, however, at the highest average, and adding thereto the interest of 145l., for which the lands were sold, amounting to 71. 7s. 6d. more, the average value of Howell's whole annual income for those three years amounts to 201 3s. Od. 1-2. But we have no reason to rate it so high, at any period during his life. For the value of the slaves being only 61. the first (or second year) after his death; upwards of 12% the succeeding year; near 20%. the next; and, so on, gradually increasing from year to year, till we find it valued to 371. 4s. 6d. in 1802, which is the highest estimate of the whole; we are well warranted in supposing that the greater part, or the whole of them, consisted of young negroes, who were either chargeable, or, at most, not very profitable. Taking it either way; and, even supposing the annual profits of Howell's estate, at that time, to have been equal to 201. 3s. the average for those three years, I should not deem that sum, by any means, a sufficient consideration, for the comfortable and plentiful accommodation and support of a miserable object, such as Howell is described to have been.

Objection. That it was not the yearly value of the lands and negroes only that Clanton was to have by this deed, as a consideration for the maintenance of Howell; but the absolute property therein.

Answer. That is not the case. If Howell had married, the annual profits were all Clanton was to have till the death of Howell and his wife both; and, if he had lawful issue, the property was gone from him for ever. And, though it may be supposed the chance of Howell's marriage was not great, yet he was free to do so, and

APRIL, 1810.

thereby to put an end to the present, and, possibly, to the future interest and hopes of Clanton; who had during the life of HowWhitehorn ell, no more than an estate upon an express condition in deed, which it was in the power of Howell to avail himself of at any moment, and thereby defeat the estate, if he thought proper sq to do.

V.

Hines.

Objection. Howell was not supported and maintained in the manner he ought to have been by Clanton. This, if true, might have been some ground for an application to a Court of Equity by Howell, in his life-time, either to rescind the contract, or to compel Clanton to pay him a stated allowance for his support, as, from all the circumstances of the case, might have been most proper but it furnishes no ground for the representatives of Howell to apply, at this time of day, for the rescision of a contract, the beneficial provisions of which terminated, on his part, with his life. If the person to whom he complained that Clanton did not use him well, had applied to a Court in his behalf, to permit him to sue in forma pauperis, the case might have appeared such as to entitle him to some relief; but, what it ought to have been, this Court cannot, at this time, by any possibility, judge. It appears to me, therefore, that there is neither a gross inadequacy of consideration, nor, under all the circumstances of this case, any inadequacy of consideration at all. Neither is there any evidence in this record, of any advantage being taken, by Clanton, of the extreme distress of Howell, nor of his exerting, at any time, any improper influence over him; nor is there, that I can perceive, the smallest proof of fraud, or any undue practice whatsoever on the part of Clanton; unless we are to presume it from the face of the deed itself, which has not even the slightest colour of it, in it; or, unless we infer it from what has been said of Howell's complaints of not being well used, which the answer of Sarah Whitehorn, and the depositions of several of the witnesses to the same effect, render questionable at least; and certainly, those complaints, if true, fall very far short of esta blishing a charge of fraud, unless we were to denominate every breach of a positive contract, a FRAUD; which no Court of Equity has yet ventured to do, that I know.

I have preferred considering this case upon the real merits, as it appears upon the face of the record, to an investigation of the practical points which have been argued at the bar; because I would never wish to reverse a decree of a Court of Chancery, upon

APRIL, 1810.

any other ground than the merits of the cause, where they can be fairly got at. In the present instance, my opinion is, that both decrees be reversed, and the complainants' bill dismissed with Whitehorn

costs.

But if the complainants were entitled to a decree in their favour, I am still of opinion that the present decree is erroneous.

My first objection to the present decree is, that the Commissioners have allowed interest on the hire of the slaves, from year to year, from the period of Howell's death, to the day of making their report.

In giving my opinion in the case of Dilliard v. Tomlinson, this term, I stated several instances, where I thought an executor or administrator could not be chargeable for interest upon money, actually received by him. Much less with interest upon the hire of slaves, which, peradventure, he may never have received, or not for several years after it became due. I beg leave to refer to what I then said, as containing my deliberate opinion, and the reasons for it.

Objection. The report states that the same was made in the presence, and with the approbation, of the defendants.

That is not the case. Sally Whitehorn, wife of one of the defendants, and Nathaniel Chambliss, who acted as special guardian to the infant defendants, are stated to have been present. But the executors are neither stated as being present, nor even as having notice to attend. The consent of the others, who were present, therefore, cannot possibly affect the executors. Neither (I presume) could Whitehorn be affected by the consent of his wife, unless it were proved she acted as his attorney, under a special power and authority from him. Nor will this Court, sitting as a Court of Equity, suffer the interests of infants to be committed, by a careless or ignorant guardian ad litem. And I must be permitted to doubt whether a Court of Equity ought ever to sanction the report of its Commissioner, when he mistakes the law; although the parties may submit to his decision, without filing any exception to his report. For his office is to state FACTS for the consideration of the Court; where he undertakes to do more, I conceive that his report is no less open to impeachment for error than the decree of the Court, proceeding upon a mistake in law, is. For a contrary doctrine would be putting the Commissioner's report, in point of legal obligation, upon higher ground than the decree of the Court itself. Upon these grounds, I think

V.

Hines.

APRIL, 1810.

the charge of interest on the hire of the negroes is utterly erro neous; for this suit was not brought till near eleven years after Whitehorn Howell's death, and, until a very short time before it was brought, Hines. there was no administrator to whom any debt due to him from any person whatsoever could be paid or tendered. The legal right in the slaves being in the executors of Clanton; had there been an executor of Howell, how could Clanton's executors have been justified in paying them for the negro hire, until the decree should fix their right to demand it. How then are the executors to be made chargeable for interest upon money which they had no right to pay? The most that equity can do, is to make them accountable for the hire of the slaves, free of interest upon that hire.

But here a question occurs. From what period are the executors to be charged with the hire, if, indeed, in this case, they are chargeable at all?

John Clanton died before the second of September, 1790; this suit was not brought until April, 1800. Burwell Loften and Michael Bailey, who qualified as his executors, were at that time both dead; Michael Bailey, the surviving executor, had, before his death, fully closed and returned to the Court his accounts as executor of Clanton, as is positively stated by the defendants, J. C. Bailey, and Benjamin Wyche, his executors, in their answer; to which there was no replication, that I can discover; nor are there any depositions taken which bear any relation to this fact. So that the answer, if not actually admitted to be true, in all its parts, stands uncontradicted in this particular. If Michael Bailey, the surviving executor, had been alive when the suit was brought, and had put in an answer to the same effect as that of his executors; and the cause had been heard in the same manner as it was; the bill against him (I conceive) ought to have been dismissed. For, surely, when an executor has settled all claims against his testator's estate, (of which he had notice,) and has settled his accounts with the Court which granted the probate of the will, and made distribution, he ought not to be affected by any dormant equitable claim, which may rise up against his testator's estate, at any distance of time afterwards. Much less ought his executors, who, under such circumstances, cannot be supposed to be conusant of the affairs of the first testator, as the present defendants expressly state in their answer. And, yet, the decree

in the present case must be understood as against them for nearly 800%. On this ground, therefore, I consider the decree as palpably erroneous.

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Objection. Clanton appointed his wife Sarah (now the defendant Sarah Whitehorn) his executrix, together with Loften and Bailey, his executors.

But she did not qualify; they did; and, on her marriage with Whitehorn, which was previous to the commencement of this suit, she forfeited every benefit under her husband's will. And it does not appear that she renounced the will, nor that she ever qualified as Clanton's executrix. The decree, therefore, which, in is terms, imports to direct the executors of the said John Clanton, "out of his assets in their hands to be administered, to pay to the complainants the money reported by the Commissioners to be due, for the hire of the slaves, and the sale of the land," must be understood (I conceive) as against the executors of the surviving executor of Clanton.

Objection. The executors, before distribution made, ought to have taken an indemnifying bond of the distributees to answer any future debts or demands against the testator's estate.

APRIL,

1810.

Whitehort

7.

v.

Hlines.

I do not know that the law requires this of an executor. In the case of an administrator, the law will not compel him to make distribution, until bond with security be given, by the distributees, to refund their proportional parts of any future debt or demand against the estate. This is a security which the law gives to the ADMINISTRATOR; but as it does not give it to the executor, and as he is bound to perform the will, I am not prepared to say that he can refuse to pay a legacy, or to make distribution of the residuum, unless the legatee or distributee will give him a similar bond. Walden v. Payne(a) is to that effect. Be that as it (a) 2 Waa may, the complainants in this cause have followed the effects of Clanton into the hands of his children,(b) and for aught that ap. (b) Vid. Burn ley v. Lampears to the contrary, they are the proper persons, not only to bert, Wash. make restitution of the slaves, but compensation for their hire. 312. The question then recurs, from what period ought they to be charged with it. And my opinion is, that they ought not to be charged with the hire of the slaves, or with the interest on the sales of the land, until the commencement of this suit. For, first, this is a dormant equity, of which these defendants, who are infants, cannot be presumed to have had any notice; nor, if they

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