ters, nay, Eliza, who intermarried with William Primrose, and Elspet, who intermarried with George Porter. Mary Taylor intermarried with William Rainey, and her issue were two sons and a daughter, namely, Will iam, Alexander, and Elizabeth. The first section of William F. Taylor's will was as follows, namely: 235*] *First. I do hereby order, will, and direct, that [on] the first day of January, first after my decease, or as near that day as can conveniently be, that the whole of the property that I may die seized and possessed of, or may in any wise belong to me, be sold on the following terms and conditions, that is to say: All the personal property on a credit of twelve months from the day of sale, purchasers giving notes of hand or bonds, with security, to the satisfaction of my executors; and all landed or real property belonging, or in any wise appertaining to me, shall be sold on a credit of one, two, and three years, by equal installments,, purchasers to give bond, bearing interest from the date, with securities to the satisfaction of my executors, and, moreover, a mortgage on the premises.' The second section gave a legacy to his negro woman Sylvia. The third and fourth sections also bequeathed legacies to particular individuals. The fifth and sixth sections were as follows: "Fifthly. I do hereby will, order, give, grant, and devise all the remainder or residue of my estate which shall be remaining, after paying the before mentioned legacies, to my dearly beloved brother, Samuel Taylor, of the parish of Drumblait and shire of Aberdeen, in Scotland, and to my beloved sister, Mary Taylor, of the same place, share and share alike, provided they shall both be alive at the time of my decease, and have issue, which issue, after their respective deaths, shall share the same equally; but if either the said Samuel Taylor or said Mary Taylor shall die without issue, then the survivor, or, if both shall be dead, the issue of the said Samuel Taylor or Mary Taylor, which soever shall leave the same, shall be entitled to the whole of the said remainder or residue of my said estate, share and share alike. "And sixthly and lastly. I do hereby nominate, constitute, and appoint my friends, Samuel Savage, Esquire, of the district of Abbeville and State of South Carolina; Patrick McDow judgments for debts due to his testator's estate, and afterward gave credit to the debtors, who were perfectly solvent during his lifetime, but became insolvent after his death, was held not liable to the legatee for the loss so incurred. Doud v. Sanders, Harp. Eq., 277. An executor named in a will, and who never qualified as such, but who took possession of some part of the personal property of the testator, was held, by these acts, to have elected to act as an executor, and was chargeable as executor. Van Horne v. Fonda, 5 Johns. Ch., 403. Administrator in the third degree, cannot be called to an account for the estate of the first intestate, without proof that it, in fact, came to his hands. Barbour v. Robertson, 1 Litt., 96. ell, of the city of Savannah and State of Georgia, merchant, Duncan Matheson and William Ross, of the city of Augusta and State of Georgia, merchants, executors of this my last will and testament; hereby revoking and making void all former wills and testaments, at any time by me heretofore made, and do declare this to be my last will and testament.” The executors all qualified as such. No bond was given, as neither the laws of the State nor the practice of the court required a bond from an executor under a will. This narrative will treat, 1st. Of the transactions in South Carolina where all the executors acted. 2d. Of the Kentucky lands, where Savage acted alone. 1. With respect to what was done in South Carolina. On the 30th of September, 1811, an inventory and appraisement were made of the goods and chattels of the deceased. But as the amount *was not added up, it cannot properly [*236 be stated; and on the 18th of January, 1812, an additional inventory and appraisement were made, which latter amounted to $808.12. Α list of notes and accounts due to the estate was also handed in by Savage, as one of the executors. Ross also filed a list of notes, bonds, and open accounts belonging to the estate, in his possession. In January, 1812, the four executors made sales of the real and personal property, amounting to $24,011.46, and returned a list thereof to the Court of Ordinary. The law at that time did not require an account of sales to be recorded. After this, McDowell did not appear, by the record, to have any further participation in the settlement of the estate. Savage, Matheson, and Ross, each filed separate accounts. Those of Matheson and Ross will be disposed of before taking up those of Savage. Matheson filed but one account, namely, on the 30th March, 1813, by which a balance was due to the executor of $281.76. Ross filed three accounts, namely: 1813, March 30th. Balance due the estate, 1814, April 4th. Balance due the Balance due the $4,034 80 6,093 63 ually received them; except such debts as are lost by his negligence or improper conduct. Cavendish v. Fleming, 3 Munf., 198. If, owing to the conduct of the administrator, any uncertainty exist as to the amount of the profits made by him on the purchase, he will be chargeable with the largest amount which, from the circumstances, he can be presumed to have realized. Brackenridge v. Holland, 2 Blackf., 377. Executors de son tort are only chargeable with assets which come to their hands; they have no right, as lawful executors have, to reduce the other assets, and, therefore, are not liable for not reducing and administering them. Kinard v. Young, 2 Richardson's Eq. R., 247. If an executor or administrator brings a suit in chancery, which, from papers in his possession, he had good reason to believe was unfounded; or where, by ordinary care and diligence in ascertain If an executor suffers the family of his testator to take possession of the property, and to convert any part improperly to their own use, he is liable for it, they being regarded as his agents. Wrighting the facts, he would have ascertained the suit to v. Wright, 2 McCord, Ch., 199. An executor is not to be charged with the debts due to the estate of his testator, at the time when they became due, but only at the time when he act be unfounded, the court, in its discretion, may charge him with costs personally, if the estate in his hands is insufficient to pay such costs. Roosevelt v. Ellithorp, 10 Paige, 415. Ross does not appear to have filed any further accounts, and what became of this balance the record does not show. It does not appear to have been paid over to Savage; but the complainants, in their bill, disavowed all claim against Ross. Savage filed ten accounts, one in each year till 1818, April 22. The last mentioned account was as follows: DR. The Estate of Wm. F. Taylor, deceased, with Samuel Sarage, Executor. 1818. March 11, V To cash paid ordi 237*] CR. nary. $ 175 V To cash paid Butler 23 62 V To cash paid Butler 16.00 14, V To cash paid James 2.50 To expenses to Edge field court-house, and to Augusta, 25 25 22, V To cash paid M. 17 18 V To cash paid the My commissions on 1 56 87 87 259 82 "SAMUEL TAYLOR, "WILLIAM RAINEY, and 'MARY RAINEY, his wife. Per ADAM HUTCHISON, "Their Attorney." These accounts of Savage have been stated together, in order not to make a break in the narrative. It will be necessary now to go back in the order of time. On the 14th of February, 1815, Savage applied, by petition, to one of the judges of the Court of Equity in South Carolina for authority to loan out the funds of the estate, praying the court to make such order as might seem equitable and just. Whereupon the court *passed an order that the petitioner [*238 should lend out the money on a credit of twelve months, on such good security as he might approve of. At some time in the year 1815, Samuel Tay2 18 lor came to the United States. On the 9th of February, 1816, he executed $349 87 the following paper: GEORGIA, City of Augusta. Whereas, Samuel Savage, one of the ex1 184 ecutors of the last will and testament of William F. Taylor, late of Edgefield district, South Carolina, deceased, and Samuel Taylor, brother of the said William F. Taylor, deceased, for himself, and in behalf of his sister, Mary Rainey, and her husband William Rainey, of Scotland, being desirous of adjusting the affairs of said estate, so far as have come to the hands of the said Samuel Savage, consent and agree that the said executor shall pay over to the said Samuel Taylor, at this time, as much money as he can spare, and on or before the first of April ensu$9,966 97 ing, to pay over all the money that may be collected on account of said estate. The said Samuel Taylor, for himself, and in behalf of his said sister Mary and her said husband, doth hereby consent and agree, on receiving from the said executor all the moneys that can be collected by the first of April next, to allow the said executor two years from this time to close the remaining business of said estate; and for the money hereto deposited in the Bank of Augusta, and which has since been put out at interest, no interest will be required of the said executor for said money during the time the same remained in bank; and [on] all moneys which may be collected hereafter by the said executor, no interest will be required, provided the same shall be paid over to the said Samuel Taylor, or his lawful agent, in a reasonable time after the same shall have been collected. The said executor hath permission to com 246 45 $10,393 424 349 874 $10,043 55 Amount balanced, $10,043 55 promise all doubtful claims or debts due to the | in trust for the right heir of William Forbes, said William F. Taylor in his lifetime, or any deceased. The consideration was one dollar. litigated cases relating to the recovery of lands In 1808 Taylor went to Kentucky and caused in South Carolina. about thirty ejectments to be brought against the occupants of the land. 1816. Given under my hand, this 9th of February, "SAMUEL TAYLOR, "For himself, and for my sister, WILLIAM RAINEY, her husband. On the day of the execution of the above, namely, the 9th of February, 1816, Savage paid to Taylor $5,300, and on the 26th of March following, the further sum of $4,700, both of which are entered in the account settled on the 3d of February, 1817, with the Court of Ordi nary. In 1811 William F. Taylor died. On the 14th of September, 1815, Mary Taylor, otherwise Rainey, and her husband William Rainey, executed a power of attorney to Patrick McDowell and Samuel Taylor, authorizing them to sue for, &c., all houses and lands which belonged to William *Forbes. [*240 The power contained the recital of a pedigree, by which Mary Taylor claimed to be the niece and one of the heirs of William Forbes, deceased, and of his intestate son, Nathaniel Forbes. In 1818 Samuel Savage, the executor of TayOn the 2d of April, 1816, Samuel Taylor,execu- lor, went to Kentucky, and whilst there exe239*]ted a power of attorney to Adam Hutch-cuted two deeds, one to Alexander McDonald inson and Peter Bennock, or either of the m, au- and others, and one to Zachariah Peters and thorizing them to receive on behalf of his sis- others, for portions of the land in question. ter, Mary Rainey, and her husband, William The sums which he is stated in the deeds to Rainey, all sums of money which were, are, or have received are $800 in one case, and $1,318 may become due and owing to the estate of the in the other. late William F. Taylor, and to sue for or prosecute all actions necessary for the recovery of a real estate in the State of Kentucky belonging to him, the said Taylor, and his sister. On the 26th of September, 1817, Savage addressed a letter to Taylor, representing that there was great difficulty in collecting money due to the estate, his anxiety to bring the matter to a settlement, that during the winter he would be able to pay three or four thousand dollars, but that he must advance it out of money arising from the sale of a tract of land of his own, &c., &c., &c. On the 22d of April, 1818, Savage paid to Hutchinson the sum of $10,037.36, as already mentioned. In 1818, Savage went to Kentucky, and we pass on to the other branch of the complain ants' claim, namely, In 1818 Savage removed from South Carolina to Tennessee, and afterwards to Alabama. In 1836 William Primrose, who had married Eliza Taylor, the daughter of Samuel Taylor, went to Kentucky, and made a compromise with many of the settlers on the land. In June, 1837, Primrose visited Savage in Alabama and inquired what had become of the Kentucky lands, to which Savage replied that they had never been sold; but upon the production of the two deeds above mentioned, admitted that he had executed them, but denied that he ever received any money for them. In December, 1837, Savage died, and George M. Savage became his executor. On the 1st September, 1838, the bill in this case was filed by Samuel Taylor, William Rainey, Alexander Rainey, and Elizabeth Rainey (all of whom were aliens, residing in 2. Transactions respecting Kentucky lands. Scotland), against George M. Savage, the exIn order to understand the position of Will-ecutor of Samuel Savage, deceased. iam Forbes Taylor, the testator, with regard to these lands, it will be necessary to recur to the original and subsequent titles. On the 25th of May, 1786, Patrick Henry, Governor of Virginia, in consideration of six land office treasury warrants, as well as by virtue and in consideration of a military warrant under the King of Great Britain's proclamation of 1763, granted to Daniel Broadhead, Junior, a tract of land containing four thousand four hundred acres, beginning, &c., &c., &c. On the 30th of September, 1786, Broadhead conveyed the land to William Forbes, of the city of Philadelphia, in consideration of the sum of £183, Pennsylvania currency. On the 19th of February, 1794, Forbes conveyed the land to John Phillips, for the consideration of £37 108. On the 3d of June, 1802, John Phillips conveyed the same land to Mary Forbes, widow and administratrix of William Forbes, deceased, in trust for the right heir or heirs of the above named William Forbes. The consideration was one dollar. On the 17th of September, 1805, Mary Forbes, widow and administratrix, conveyed the land to William Forbes Taylor, of South Carolina, The bill states that William F. Taylor, who was a native of Scotland, but a naturalized citizen of the United States, died in the Edgefield district, in South Carolina, about the year 1811, having first made his last will, which was duly proved and admitted to record before the Court of Ordinary in the Edgefield district, on the 11th day of August, 1811, and appointed Pattick McDowell, Duncan Matheson, William Ross, and Samuel Savage his executors, who, on the said 11th August, 1811, were duly qualified as such, and took upon themselves the trust reposed in them. By the provisions of the will, the bill further states, after the payment of sundry legacies, all of which it is suggested were paid, the testator gave, granted, and devised all the remainder or residue of his estate, remaining after the payment of said legacies, to his brother, Samuel Taylor, of the parish of Drumblait, and shire of Aberdeen, in Scotland, and to his sister, Mary Taylor, of the same place, share and share alike; provided, that both of them were alive at the time of the testator's death, and have issue, which issue, after the respective deaths of his brother and sister, were to share the same equally; but if either of them should die without issue, then the survivor, or, if both should be dead, the issue of said Samuel and Mary, were to be entitled to the whole of the remainder or residue of said estate, share and share alike. 241*] *The bill further states that the residuary legatees were alive at the time of the testator's death; that they were both legally married, and respectively had issue; that the sister, Mary Taylor, is dead, and that the complainants, William, Alexander, and Elizabeth Rainey, are her issue. penses, without charging himself with any interest on the amount of money received by him, which alone would amount to the sum of $5,000,up to the time that Savage alleges it to have been paid over by him to the legatees; and that amount, at least, with interest to the time of filing the bill, the complainants claim as their undisputed right. The complainants further charge, that in the year 1818 Savage removed to Tennessee; that, in the same year, he went to Kentucky, where the testator had lands to a large amount and of great value; that he then fraudulently represented himself to be the only surviving executor of the said estate, although McDowell was still living; and that, regardless of the provisions of the will requiring the lands to be sold on a credit of one, two, and three years, with securities and a mortgage on the premises sold, Sav The bill further states that the executors executed their trusts severally; that Matheson and Ross departed this life, the first in 1812, and the last in 1816; that the principal part of the business appertaining to the estate in Georgia was under the management of McDowell, and that in South Carolina under that of Savage; that Matheson and Ross fully settled their ac-age sold for cash 1,059 acres of the land for the counts in their lifetime, and that the balances due from them have been fully paid to the complainants. The bill further states that the bulk of the testator's estate was in South Carolina, and was managed, as before mentioned, by Savage, and that an amount of property belonging to the es tate, equal in value to $100,000. went into Savage's hands, of which the sum of fifty thousand dollars has never been accounted for. The bill further states that, at the time of the testator's death, Savage was justly indebted to him, on open account, as stated on the testator's books, in the sum of $789.70, which was never noticed in the inventory of Savage as returned to the ordinary; that he received, in cash on band at the time of the testator's death, the sum of $681.75, of which no return was ever made by Savage; and that Savage fraudulently concealed his indebtedness, and the receipt of the last mentioned sum of money. In proof of these statements, an inventory and appraisement of the effects of the testator in South Carolina are exhibited, from which, it is alleged, it will appear that no returns were made of the last mentioned liabilities, and from which it will also appear, as it is further alleged, no returns were made of debts due to the estate, although a large amount of debts due by bond, note, and account came to Savage's hands. The complainants charge that there is no account of sales returned to the Court of Ordinary by Savage; that a large quantity of valuable land in South Carolina was sold by the executors, the proceeds of which, to the amount of several thousand dollars, went into Savage's hands, and have never been accounted for; that they have examined the records of the said Court of Ordinary, and cannot find that any Enal settlement was ever made therein by Savage; that only partial accounts were rendered by him, of which they file transcripts as exhibits, marked from 1 to 10; that an item of $10,037.55, in exhibit 10, which is alleged to have been paid to the attorney in fact of the complainants, is untrue; and they require proof, not only of the payment, but of the authority of Hutchinson (the person to whom it purports have been paid) to receive it; that the exhibit 10 appears to be the last attempt, on the part 242*] of *Savage, to render an account; and they charge the fact to be, that Savage retained $3,232.31, for commissions and traveling ex sum of $2,118; in proof of which they refer to exhibits D and C, which are copies of deeds executed by Savage to Alexander McDonald and others, to Zachariah Peters and others, of record in Kentucky. They charge these lands to have been then worth eight dollars per acre, and would have sold for that if the terms of the will had been complied with; and that the lands were worth at the time of filing the bill forty dollars an acre. They further state that Savage, shortley after these sales, removed to Lauderdale County, Alabama, where he resided until his death, which occurred about the month of December, 1837; that he never made any return of said sales, but fraudulently concealed them from the complainants; that Primrose, the attorney in fact of the complainants, inquired of Savage, a few months before his death, if anything had ever been done with the Kentucky lands, and that he fraudulently answered that they were unavailable, and had never been sold; which statement he continued to make until the deeds were shown to him, and he then acknowledged he had sold them. They further state that the quantity of lands actually embraced in the deeds. C and D was at least two hundred acres more than the quantity mentioned therein; that besides the lands above referred to, the testator had, in Kentucky, other lands to the amount of thirty thousand acres, more or less, of the value of $500,000, all of which could have been sold by Savage, or by proper diligence secured to the estate; that he neglected to attend to the last mentioned lands; that after they were secured to the testator by judgments at law, bills in chancery were filed by the settlers thereon, in the Kentucky courts, and through the gross neglect of Savage, decrees were permitted to go in their favor, and the lands were lost. They further state that George M. Savage had become the personal representative of Samuel Savage, and they make him a defendant to the bill. *Finally. They pray for an account, [*243 and that the defendant, the executor, be decreed to pay the amount due from Samuel Savage; that he be decreed to pay either the actual value of the Kentucky lands sold by Samuel Savage, or their present value, with interest; together with the value of the lands lost by Samuel Savage's negligence. On the 25th March, 1839, George M. Savage, | fraudulently concealing the before mentioned the defendant, filed his answer. items of indebtedness from complainants. The answer denies that Samuel Savage undertook the execution of the will or the trusts therein, as regarded any property or effects whatever of the testator, or other duty, beyond the limits of South Carolina. On the contrary, as far as he had knowledge or belief, the will | was never admitted to record or proven in any other State than South Carolina, nor did the executors qualify in any other State; and he expressly states, that they did not qualify, nor was the will ever proven or recorded, in Kentucky, to the defendant's knowledge; nor was it the right or duty of the executors to interfere with the testator's property situated in any for eign jurisdiction, beyond the limits of South Carolina, where the testator was domiciled at the time of his death. The answer declines admitting that Samuel or Mary Taylor, or either, took any estate or interest in the property of the testator under the will, or that they are in any manner entitled under the same. On the contrary, he charges that the bequests in the will are void, and vest no interest or estate either in the said Samuel or Mary, either as leagtees or otherwise, or in the complainants. Nor is it addmitted that the complainants are the next of kin, having right to prosecute this suit; but, on the contrary, the supposed claim of Mary Taylor could only be prosecuted through the authority of her personal representative, legally appointed in the courts of the United States. The defendant further states that it is not true that the principal part of the business of the estate in South Carolina was under the management of Samuel Savage, exclusively; on the contrary, the four executors jointly executed and filed in the Court of Ordinary of the Edgefield district a true and perfect inventory of the estate, together with an account of sales of both real and personal estate, as appears by the exhibits L and M. The defendant further states that Samuel Savage had nothing to do with the estate in Georgia; that the property, both real and personal, in South Carolina, which came or ought to have come to the hands of the said Savage, was truly accounted for, as also appears by exhibits L and M, and the various settlements made by Savage from time to time in the Court of Ordinary, which are contained in exhibit N. The defendant denies that there was any property or estate, or other effects of the testator, in South Carolina, which was not accounted for in the said court. 244*] *The defendant denies that $100,000 of the testator's estate went into Savage's hands, full fifty thousand of which was never accounted for. On the contrary, the before mentioned records exhibit a full and complete account of all property or effects which came or ought to have come into Savage's hands; all of which has been truly accounted for, and paid over to Samuel and Mary Taylor, or their agent. The defendant denies the indebtedness of Savage for the account of $789.70. The defendant also denies the allegation in the bill, that Savage received $681.75, cash on hand, at the testator's death. The defendant also denies the charge of The defendant, further answering, states that the exhibit L corresponds with exhibit B in the complainant's bill, and denies that no return of debts due to the estate was made to the court by the executors; on the contrary, he avers that Samuel Savage and Ross, in January and February, 1812, severally returned and filed in the said court an inventory of the bonds, notes, accounts, and other claims due to the estate, as appears by exhibits O and P in the answer, which include all that was due from all sources, as far as the defendant has heard, knows, or believes. The defendant, further answering, denies the allegation in the bill, that no account of sales was ever returned to the ordinary by Samuel Savage; on the contrary, the records show a complete and full return of sales, of both real and personal estate, made by Savage and the other executors. The defendant also denies that a large quantity of valuable land in South Carolina was sold by the executors, and that the proceeds, to the amount of several thousand dollars, went into the hands of Samuel Savage; on the contrary, the executors sold no lands in South Carolina but what are fully accounted for to the said court. The defendant insists that Samuel Savage, as the executor in South Carolina, on the 22d April, 1818, made a fuil, fair, and final settlement of all his transactions with said estate in the said Court of Ordinary, in presence of Adam Hutchinson, the attorney of the aid Samuel and Mary Taylor; the accounts of the said Samuel Savage were then balanced, and the sum due from him paid over in said courr to the said Hutchinson, as the attorney and agent aforesaid, as will appear by the exhibit N; and also by a copy of a receipt of Samuel Taylor and William Rainey and wife, by the said Hutchinson, as their attorney, executed in their name to Samuel Savage, on the 22d April, 1818, for the sum of $10,037.361, filed as exhibit T. The defendant denies that Samuel Savage ever applied the money of the estate to his private use. *The defendant alleges that the said [*245 Samuel Savage stated to him that he had never made any interest out of the funds of the estate; and the defendant asserts that he believes the statement to be true. The defendant further states that the complainants can set up no claim for interest, because, on the 9th of February, 1818, Samuel Taylor, for himself and his sister, the said Mary Rainey, and her husband, William Rainey, executed the exhibit S to the said Samuel Savage, which is an agreement, made under circumstances mentioned in detail by the defendant, in substance as follows: The said Samuel Taylor, and the said William and Mary, agreed that Samuel Savage should pay over to the said Samuel Taylor, at that time, as much money as he could spare, and in the ensuing April to pay over such other moneys as might be collected on account of the estate; and the said parties agreed, on receiving all moneys that could be collected by the first of April ensuing, to allow the said Samuel Savage two years from |