Smith Thompson

“ It is a well settled rule in chancery, in the construction of wills as well as other instruments, that when land is directed to be sold, and turned into money, or money is directed to be employed in the purchase of land, courts of equity, in dealing with the subject, will consider it that species of property into which it is directed to be converted. ”

“ As far as any proceeds of the personal estate came into their hands, they are charged in this audit; but they are not charged with what the widow and heirs retained in their own hands, and for their own use; the object being to ascertain whether the executors are indebted to the estate, or the estate to them. It will be seen, that by an account stated by the counsel for the heirs, and annexed to the auditor's statement, that he has charged the executors with 20,250 dollars, being the amount of sale of land to George Magruder. ”

“ If the account be remodelled, and the principles contended for be admitted, it is apparent that the executors in 1816 were in possession of abundant means, at pleasure, to pay all their testator's debts; it was their duty to apply the assets to that purpose, and save the estate from the accumulation of interest. Whether they applied the money to their own use, or only neglected to apply it properly, is of no consequence; they are chargeable with the interest. ”

“ That the city lots, advertised to be sold as aforesaid, are not by the will devised to be sold, until the proceeds of the sale of the farm on which Dulin lived, and the personal estate, has been applied, and a deficiency appear. ”

“ The answer of George Peter, the surviving executor, alleges that the principal management of the business of the estate was assumed by his co-executors; that believing Johns fully competent, and that he would attend to the business in a way best calculated to promote the interest of his sister and her children, he left it to them to settle the estate, and to collect and dispose of the proceeds thereof, and provide for the support and education of the children, as they might think best ”

“ His primary object seemed to be that his family should remain together, and live as they had been accustomed to live. And he accordingly, in the first place, directs that the proceeds of all his estate should be vested in his wife, Sarah Peter (who is made one of his executors) , for the maintenance and education of his children. He directs, that no appraisement or valuation should be had of any part of his property attached to his dwellinghouse, and that his sons should receive as good educations as the country would afford, and his daughters the best the place could furnish. ”

“ The same as to the negligence: and the answer and Beverley's own letter, and his bill, filed in 1821, and dismissed; show that the defendant, George Peter, came into the trust merely to attend to a farm or two in Maryland; and that he left the whole management and settlement of the estate, and the maintaining and educating the children, to the widow and her brother, the other executors. If they misapplied the assets to the children's use, instead of the creditors', it would be bad enough for the children to complain of this against them. ”

“ If they have suffered the debts to stand unpaid, and have, themselves, subsequently paid them, with interest, they ought not to be allowed in their account for the interest so paid; it was created by their neglect, and they should bear the burthen themselves: all discounts and interest paid after the year 1816, and credited by the auditor, ought to be disallowed. ”

“ The equity is therefore against the extinguishment asserted.
There are collateral proofs that this was the arrangement. The discounts paid are charged to the estate, and the cost of a protest is charged. Beverly always admitted the charge for discounts on the notes, after the original notes had been given up. The first objection ever brought forward, was presented on filing the exceptions to the master's report. It is, in fact, the ordinary case of putting vouchers in the hands of the trustee, under a special agreement. Cited, 2 Gill & Johns. ”

“ Each executor is liable only for his own acts, and what he receives and applies, unless he joins in the direction and misapplication of the assets. Cro. Eliz. 348; 4 Ves. 596; 4 Johns. Ch. 23; 19 Johns. Rep. 427.
It is not intended to intimate that there was any devastavit or waste of the estate by Mrs Peter. There is, indeed, no pretence in the bill of any misapplication of the estate, by her or any other of the executors ”

“ They are not positively directed by the will to be converted into money; but the sale of them was contingent, and only in aid of the proceeds of the Dulin farm, if a sale of them should become necessary for the payment of debts. ”

“ To this report the complainants excepted, and the exceptions were overruled: and at the March term of the circuit court in 1835, a final decree was entered confirming the report of the auditor, and decreeing a perpetual injunction. From this decree of a perpetual injunction, the defendants in the court below appealed; and from so much of the decree as confirmed the report of the auditor, the complainants appealed; and upon these cross appeals the cause comes here for review. ”

“ And Mr Justice Platt, in that case, refers to a class of cases in the English courts, where it is held, that although, from the terms made use of in creating the power, detached from other parts of the will, it might be considered a mere naked power to sell ”