A. D. 1912. make annual of Common Pleas is authorized to permit such one or more of the first or former trustees to surrender his, her, or their trust, and to appoint such one or more trustees in his, her, or their room, as to the said Court may appear fit, proper, and advisable; and the trustee or trustees so appointed and substituted shall then be considered, to all intents and purposes, as vested completely and absolutely with all the estate, right, title, interest, powers, privileges, and authority, and as liable to all the conditions, terms, and restrictions as that trustee or those trustees were vested with or liable to, in whose stead, room, or place, he, she, or they may be so appointed or substituted; and the first or former trustee or trustees shall be therefrom completely exonerated and dis charged: Provided, always, That a certificate of such appointment and substitution shall be endorsed by the Clerk of the Court of Common Pleas upon the original trust deed, if the trust be created by deed, and the deed can be found, and that such a certificate shall be annexed to the original will, if the trust be created by will, and be lodged therewith in the office where the will may be lodged; and that such a certificate shall also be recorded in the office where the deed or will may be recorded or lodged, or ought to be recorded or lodged. Ex parte Turner, Bail. Eq., 395; Ex parte Kunst, Bail. Eq., 489; Er porte Robert, 2 Strob. Eq., 86; Ex parte Mayrant, Rich. Eq. Ca., 1; Davant 1. Guerard, 1 Speer, 242; McNish v. Guerard, 4 Strob. Eq., 66; Ez parte Trustees, 7 Rich. Eq., 471; Morrow v. Odom, 14 S. C., 623. Trustees to Sec. 3356. It shall be the duty of every trustee appointed returns. by the Court to make an annual return of the estate in his Civ. '02, § possession, setting out all the items of money received and 2589. Commissions of trustees. paid out, with the proper vouchers. The Judge of Probate shall set apart certain days for the examination of such accounts, and give notice thereof to all trustees whose duty it shall be to account before him. Myers v. Myers, 2 McC. Ch., 214; James v. Wallace, 4 McC., 121; Lyles Lyles, 1 Hill Ch., 76; Rainsford v. Rainsford, McM Eq., 16; Nobles v. Hoge 36 S. C., 322; 15 S. E., 359. Sec. 3357. Trustees shall be allowed the same commissions for the execution of their trusts as are allowed by law Civ. '02, to executors and administrators. 2590. Muckenfuss v. Heath, 1 Hill Ch., 182; Singleton v. Lowndes, 9 S. C., 465 Lanier v. Brunson, 21 S. C., 41; Cobb v. Fant, 36 S. C., 1; 14 S. E., 959. Cunningham v. Cunningham, 81 S. C., 506; 62 S. E., 845. TITLE VII. OF TITLE TO PROPERTY BY SPECIAL PRO- CHAPTER LXXVII. Of Sales by Executors, Administrators and Fiduciaries. CHAPTER LXXVIII. Of Sales under Execution. CHAPTER CHAPTER LXXIX. Of Homestead. LXXX. Of Assignments for Benefit of Credi- A. D. 1912, SEC. CHAPTER LXXVII. Of Sales by Executors, Administrators, and Fiduciaries. 3358. Lawful for qualified executors to sell land, &c. 3359. Executors dying or renouncing. 3360. Liability for taking insufficient security. 3361. May purchase under liability to pay the actual value. 3362. To give security to account for purchase money. 3363. Order of sale of personal property. 3364. Judge of probate to grant order. SEC. 3365. Power of Judge of Probate 3366. Sales of certain evidences of 3367. Conveyance of estates held 3368. Confirmation of such a con- 3369. Infant trustee, &c., may be Lawful for qualified e x Section 3358. Whenever any person has directed or shall lirect by his or her last will and testament, duly executed in ecutors to sell The presence of three or more credible witnesses, that his land, &c. Civ. '02, § r her land shall be sold for the payment of his or her debts, 2600. A. D. 1912. Executors dying or re or if no person is named in said will to execute the said power, it may and shall be lawful to and for the executors. or a majority of such executors, who shall qualify on the said will, or the survivor or survivors, to sell and convey the said lands agreeably to the intention of the testator. Applied.-Herbemont v. Bostick, 2 Brev., 435; Drayton v. Grimke, Ba Eq., 385; Chanet v. Villeponteaux, 3 McC., 29; Ferguson v. King, 2 N. A McC., 588; Ware v. Murph, Rice, 55; Thompson v. Gaillard, 3 Rich, 418: Douglass v. Dickson, 11 Rich., 417; Britton v. Lewis, 8 Rich. Eq., 21: American Bible Society v. Neble, 11 Rich. Eq., 156; Baldwin v. Cooley. 1 S. C., 256; DeSaussure v. Lyons, 9 S. C., 492; Jennings v. Teague, 14 S. C., 229; Smith v. Winn, 27 S. C., 591; 4 S. E., 240; Bredenburg Bardin, 36 S. C., 197; 15 S. E., 372. But irrespective of this Act the power survives to one of several executors where it is coupled with a trust.— Bredenburg v. Bardin, 36 S. C., 197; 15 S. E., 372. But it does not app if the power be given to the executors jointly as several persons or in per sonal confidence; then all must act and it will not survive.—Mallet Smith, 6 Rich. Eq., 12; Smith v. Winn, 27 S. C., 591; 4 S. E., 240. The Act of 1876 is remedial and retrospective.-Bredenburg v. Bardin, 36 S. C. 197; 15 S. E., 372. Sec. 3359. If the executor or executors should die, or nouncing. renounce according to law, the administrator or adminis Civ. '02, §tratrix with the will annexed shall be authorized to sell the real estate of the said deceased, as directed in and by the will. 2601. Liability for taking insuf Rose v. Thornley, 33 S. C., 313; 12 S. E., 11. Sec. 3360. If any executor, or administrator with the will ficient secur- annexed, having power under the will to dispose of the estate or any part thereof, shall take such security as shall Civ. 02, be clearly proved to be insufficient at the time, such exec ity. 2602. chase under pay the ac tors, or administrators, and their sureties, shall be liable to make good any loss or damages that the legatees or credi tors may sustain, to be recovered by action against such executors, or by action on the bond of such administrators. wherein such damages shall be assessed by the verdict of jury. May pur- Sec. 3361. It shall be lawful for any executor or execliability to trix, administrator or administratrix, to become a purchaser tual value. at the sale of the estate of his or her testator or intestate Civ. 02, under whatsoever authority the said sales may be made, and the property so purchased shall be vested in him or her; but he or she shall be liable to the parties interested for the actual value of the property at the time of sale in cases where it shall have been sold at an under price. 2603. Cummings v. Coleman, 7 Rich. Eq., 509; Huger v. Huger, 9 Rich. Eg,, 217; Anderson v. Butler, 31 S. C., 183; 9 S. E., 797. Embraces sales of land. -Huger v. Huger, 9 Rich. Eq., 217; Cunningham v. Cauthen, 37 S. C., 124'; 15 S. E., 917. A. D. 1912 curity to ae chase money. Sec. 3362. If any executor or executrix shall purchase To give se any property at the sales of the estate of his or her testator, count for purhe or she shall give bond, with surety, to the Judge of Probate of the County, conditioned to account for the purchase 2604. money of the said property. Finch v. Finch, 28 S. C., 164; 5 S. E., 348; Huger v. Huger, 9 Rich. Eq., 217. Civ. '02, 3 sale of per Sec. 3363. On all sales of personal property made by order of executors and administrators, they shall first obtain an sonal prop order from the Court of Probate; and no sale made without erty. such order shall be valid, except it be directed by the will. Under Act of 1789 administrator still had right to sell without such order. -Harth v. Heddlestone, 2 Bay, 321. But under Act of 1824 such order ecame imperative as to personal property.-Rhame v. Lewis, 13 Rich. Eq., 69. But choses in action are not embraced in personal property.-Ib. ; eynolds v. Reeves, 23 S. C., 436; Chapman v. City Council, 30 S. C., 549; S. E., 591. The doctrine of implied warranty applies to such sales.-Dunan v. Bell, 2 N. & McC., 153. But purchaser cannot recover back his money id on that ground.-Prescott v. Holmes, 7 Rich. Eq., 9. Right of Probate Court to set upset price.-Epperson v. Jackson, 23 8. -158; 65 S. E., 217. Civ. '02, 2605. bate to grant Civ. '02, Sec. 3364. It shall be the duty of the Judge of Probate, Judge of Prowhom administration may be granted, upon application ade to him, to grant an order for the sale of the whole or y part of the personal estate of the deceased intestate, if, 2006, his opinion, the same is advisable, regulating the time, ace, and credit to be given, in such manner as to do imparal justice to all persons interested therein. Terms of sale must be complied with.-Peay v. Fleming, 2 Hill Ch., 97; ssey v. Cureton, Chev. Eq., 181; Roberts v. Adams, 2 S. C., 337. Except t the time of sale may be postponed by administrator when advisable.nb v. Lamb, Speer Eq., 289. Indge of Pro estate Sec. 3365. The Judge of Probate, in whose office a will is Power of corded, shall have the same power as to the personal bate over per ate of a testator, not inconsistant with the provisions of sonal of testators. will, as is given him over the personal estate of an intes- Civ. '02, § e by the preceding Section. 2607. fidu-, Sales of cerother of indebted tain evidences Sec. 3366. All administrators, executors, and other ries, shall be allowed to sell to the highest bidder, as sonal property is sold all notes, accounts, and other evi ness. Civ. '02, 2608. A. D. 1912. Conveyance of estates fants in trust mortgage. Civ. 02, 2609. dences of indebtedness coming into their hands as such, when the same are appraised or have become doubtful e worthless. Sec. 3367. It shall and may be lawful for any person, held by in under the age of twenty-one years, having estates in lands, or by way of tenements, or hereditaments, only in trust for others, or by way of mortgage, by the direction of the Court of Common Pleas, signified by an order made upon hearing all parties concerned, on the petition of the person for whom such infant or infants shall be seized or possessed in trust, or of the mortgagor, or guardian of such infant, or persons enti tled to the moneys secured by or upon any lands, tenements, or hereditaments, whereof any infant is or shall be seized or possessed by way of mortgage, or of the person entitled to the redemption thereof, to convey and assure any such lands tenements, or hereditaments, in such manner as the said Court shall, by such order so to be obtained, direct, to any other person. Confirmation af such a conveyance. Sec. 3368. Such conveyance or assurance, to be had and made as aforesaid, shall be as effectual in law, to all intents Civ. 02, and purposes whatsoever, as if the said infant was, at the time of making such conveyance or assurance, of the fall age of twenty-one years. 2610. tee, &c., may to make such Infant trus- Sec. 3369. All and every such infant, being only truste be compelled mortgagee as aforesaid, shall and may be compelled by such conveyance, order, so as aforesaid to be obtained, to make such convey ance, assurance, as aforesaid, in like manner as trustees e mortgagees of full age are compellable to convey or assig the trust estates or mortgages. &c. Civ. '02, § 2611. |