A. D. 1912.

make annual

returns.

2589.

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 pur poses, 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 so appointed or substituted; and the first or former trustee or trustees shall be therefrom completely exonerated and discharged: 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 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 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 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.

Commissions of trustees.

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. Hogg 36 S. C., 322; 15 S. E., 359.

Sec. 3357. Trustees shall be allowed the same commis sions 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.

A. D. 1912,

TITLE VII.

OF TITLE TO PROPERTY BY SPECIAL PRO-
VISIONS OF LAW.

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-
tors.

CHAPTER LXXVII.

Of Sales by Executors, Administrators, and Fiduciaries.

Lawful for qualified ex

land, &c.

Civ. '02, §

direct by his or her last will and testament, duly executed in ecutors to sell the presence of three or more credible witnesses, that his or her land shall be sold for the payment of his or her debts, 2600. or for the purpose of distributing the money which may arise from the sale thereof among his or her legatees, or for any other purpose whatsoever, if either such power of sale be expressly given to the executor or executors of said will,

A. D. 1912.

Executors dying or renouncing.

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, Bal Eq., 385; Chanet v. Villeponteaux, 3 McC., 29; Ferguson v. King, 2 N. & 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.. 271: 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 powe survives to one of several executors where it is coupled with a trustBredenburg 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 v Smith, 6 Rich. Eq., 12; Smith v. Winn, 27 S. C., 591; 4 S. E., 240. Th Act of 1876 is remedial and retrospective.-Bredenburg v. Bardin, 36 8. C 197; 15 S. E., 372.

Sec. 3359. If the executor or executors should die, or 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

ity.

Civ. '02, S 2602.

Rose v. Thornley, 33 S. C., 313; 12 S. E., 11.

Sec. 3360. If any executor, or administrator with the wi ficient secur-annexed, having power under the will to dispose of the estate or any part thereof, shall take such security as shall be clearly proved to be insufficient at the time, such execu tors, or administrators, and their sureties, shall be liable to make good any loss or damages that the legatees or cred 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 s jury.

May pur

chase under

pay the actual value.

Sec. 3361. It shall be lawful for any executor or exectliability to trix, administrator or administratrix, to become a purchaser 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; bu 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 ag

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 pur he 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., 269. But choses in action are not embraced in personal property.—Ib.; Reynolds 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 aid 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 order.

Civ. '02,

Sec. 3364. It shall be the duty of the Judge of Probate, Judge of Proy whom administration may be granted, upon application nade to him, to grant an order for the sale of the whole or ny part of the personal estate of the deceased intestate, if, 2006. n his opinion, the same is advisable, regulating the time, lace, 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; assey v. Cureton, Chev. Eq., 181; Roberts v. Adams, 2 S. C., 337. Except at the time of sale may be postponed by administrator when advisable.amb v. Lamb, Speer Eq., 289.

Judge of Pro

estate

Sec. 3365. The Judge of Probate, in whose office a will is Power of ecorded, shall have the same power as to the personal bate over perstate of a testator, not inconsistant with the provisions of sol of testators. he will, as is given him over the personal estate of an intes- Civ. '02, 3 te by the preceding Section.

2607.

fidu-, Sales of cer

Sec. 3366. All administrators, executors, and other
aries, shall be allowed to sell to the highest bidder, as
ersonal property is sold all notes, accounts, and other evi-

tain evidences indebted

other of

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 or 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 entitled 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 of such a conveyance.

Sec. 3368. Such conveyance or assurance, to be had ani 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 fil 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 su conveyance, order, so as aforesaid to be obtained, to make such conver ance, assurance, as aforesaid, in like manner as trustees e mortgagees of full age are compellable to convey or assign the trust estates or mortgages.

&c.

Civ. '02, § 2611.