237*] .. ... ... $ 175 23 6212 16 00 14, V To cash paid James Day, To expenses to Edge- Mims, clerk, etc., V To cash paid the My commissions on 25 25 17 1834 1 564 87 872 My commissions on *March 22, V Cash paid the or dinary, Expenses at Edge field Court-house, April 22, V Cash paid Adam 1818. March 14, at Hutchinso The account current, received in the ordinary's office on the oath of Samuel Savage, executor, the 22d April, 1818, and find vouchers for every item marked with the letter V on the left hand margin. Jno. Simkins, O. E. D. At the time of filing this account, there was filed also the following receipt: "Received of Samuel Savage, executor of the estate of Wm. F. Taylor, deceased, the sum of ten thousand and thirty-seven dollars and thirtysix and one quarter cents, in full of his actings and doings on the said estate up to this date, as per his account current this day rendered to the ordinary of Edgefield district. I say, received by me this twenty-second of April, Anno Domini 1818. "Samuel Taylor, "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 Taylor came to the United States. On the 9th of February, 1816, he executed the following paper: "Georgia, City of Augusta. "Whereas, Samuel Savage, one of the executors 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 ... $ 9,966 971⁄2 spare, and on or before the first of April ensu 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 $10,393 42 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 45 349 872 $10,043 55 Amount balanced, $10,043 55 promise all doubtful claims or debts due to the said William F. Taylor in his lifetime, or any litigated cases relating to the recovery of lands in South Carolina. "Given under my hand, this 9th of February, 1816. "Samuel Taylor, "For himself, and for my sister, "William Rainey, her husband. "Test: Nicholas Ware." 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 Ordinary. On the 2d of April, 1816, Samuel Taylor, execu239*] ted a power of *attorney to Adam Hutchinsc inson and Peter Bennock, or either of them, authorizing them to receive on behalf of his sister, Mary Rainey, and her husband, William Rainey; all sums of money which were, are, or may become due and owing to the estate of the 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. in trust for the right heir of William Forbes, deceased. The consideration was one dollar. In 1808 Taylor went to Kentucky and caused about thirty ejectments to be brought against the occupants of the land. 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 Taylor, went to Kentucky, and whilst there executed two deeds, one to Alexander McDonald and others, and one to Zachariah Peters and others, for portions of the land in question. The sums which he is stated in the deeds to have received are $800 in one case, and $1,318 in the other. 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, with many of the settlers on the land. On the 26th of September, 1817, Savage ad-went to Kentucky, and made a compromise dressed a letter to Taylor, representing that there was great difficulty in collecting money In June, 1837, Primrose visited Savage in due to the estate, his anxiety to bring the mat- | Alabama and inquired what had become of the ter 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, etc., etc., etc. 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 complainants' claim, namely, 2. Transactions respecting Kentucky lands. In order to understand the position of William 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, etc., etc., etc. 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 10s. 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 Scotland), against George M. Savage, the executor of Samuel Savage, deceased. 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 Patrick 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 pay On the 3d of June, 1802, John Phillips con-ment of said legacies, to his brother, Samuel veyed 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, 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 | penses, without charging himself with any inshould be dead, the issue of said Samuel and terest on the amount of money received by him, 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. 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 accounts 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 estate, 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 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, Savage sold for cash 1,059 acres of the land for the 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, shortly 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 hand at the time of the testator's death, the sum | complainants; that Primrose, the attorney in 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. 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. 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 final 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, *Finally. They pray for an account, [*243 They further state that George M. Savage had become the personal representative of Samuel Savage, and they make him a defendant to the bill. not only of the payment, but of the authority and that the defendant, the executor, be de- On the 25th March, 1839, George M. Savage, | fraudulently concealing the before mentioned the defendant, filed his answer. 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 foreign jurisdiction, beyond the limits of South Carolina, where the testator was domiciled at the time of his death. items of indebtedness from complainants. 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 even 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 The answer declines admitting that Samuel or Mary Taylor, or either, took any estate or interest in the property of the testator under the ❘ and the other executors. 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 legatees or otherwise, or in the complainants. Nor is it admitted 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 Land 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 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, vent 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 full, 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 said Samuel and Mary Taylor; the accounts of the said Samuel Savage were then balanced, and the sum due from him paid over in said court 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 $10,037.364, 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 of the testator's estate went into Savage's Taylor, for himself and his sister, the said 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 hand, at the testator's death. on The defendant also denies the charge of 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 The defendant further states that as late as March, 1816, Samuel Taylor was satisfied with the manner in which Savage conducted the business of the estate, as appears by a copy of a letter dated 26th March, 1816, exhibit Z; that, shortly after the date of this letter, Taylor left the United States, having first constituted the said Adam Hutchinson the agent of the legatees | citizen of Alabama. that date to close the remaining business of the estate; that for the money theretofore deposited in the Augusta Bank, no interest was to be required for the time the same remained in bank; and that, on all moneys that might be collected by the said Samuel Savage, no interest was to be required, provided the same should be paid over to the said Samuel Taylor, or his agent, in a reasonable time after it was collected. The defendant further states, that on the very day of the agreement, Samuel Savage paid to Taylor, for himself and his sister, the sum of $5,300, as appears by Taylor's receipt. And on the 26th March, 1816, he again paid the sum of $4,700, as per Taylor's receipt; that Samuel Savage proceeded with all despatch to close the remaining business, and in April, 1818, as before stated, made the final settlement of the estate; all which, it is insisted, is a complete bar to interest. The defendant further states that Samuel Savage did not retain the sum of $3,232.31 for commission and traveling expenses; but the exhibit N will show what he did retain, which the defendant insists was a reasonable sum, and came before the ordinary for examination. to Kentucky; and that if the lands were ever subject to trusts, such as those in the will, the same were lost when the lands escheated, and could not be enforced, either in law or equity. 2. That the power to sell being a naked power, and having been conferred on four executors, could not be executed by one, so as to convey the title. The defendant admits that Samuel Savage, in the year 1818, did go to Kentucky, and that he executed the papers D and C, exhibited in the bill; but he denies that he fraudulently represented himself as the only surviving executor; and he also denies that the execution of the deeds violated the provisions of the will, or that he had authority, however he may have thought so himself, to convey the lands under the will. The defendant further insists that the sales were merely void, and did not affect the rights of the complainants, on another ground-that McDowell, another executor, was alive at the date of the deeds, and did not join in the conveyance. The defendant further denies that the lands in Kentucky were sold for cash, but for an inconsiderable amount of property. And, if it shall be material, he pleads, as to the consideration for the sale of those lands, the statute of limitation and lapse of time. 1 to supervise the management of the estate, and finally to settle it, and receive the moneys. And a copy of the power of attorney to Hutchinson is exhibited, G, the original being destroyed. From that time no further claim is set up, and the whole business sleeps for more than twenty years, when this attempt is made to overhaul the accounts and settlements before the ordinary. 246*] *The defendant, therefore, insists 1. That the settlements are absolutely conclusive, and that it is not competent for any other court to open and inquire into the correctness or regularity of the proceedings before the ordinary. 2. That if not conclusive, they are prima facie evidence of the correctness of the settlements. 3. Upon the statute of limitations and lapse of time, as evidence that the estate has been settled, and all the moneys paid over. The defendant admits that Samuel Savage died in November, 1837, in Lauderdale County, Alabama, where he was domiciled; that the defendant is the executor of his will, and is a Finally, the defendant pleads to the jurisdiction of the court. On the 31st May, 1839, the complainants filed an amended bill. *They admit therein, that the domi- [*247 cil of the testator was in South Carolina. That his father and mother died before his death. That Samuel Taylor was his only brother, and Mary Taylor his only sister. That she intermarried with William Rainey, and had issue the three other complainants. That the testator had no kindred in the United States at the time of his death. And that the said Samuel and Mary were, at that time, his only heirs-at-law. The complainants further state that Samuel Taylor visited South Carolina in 1815, for the purpose of settling with the executors; and that he received, in February and March, 1816, from Samuel Savage, the sum of $10,000, as part of the estate; but no interest was paid, for the reasons assigned by him. That Savage wrote to Taylor, in September, 1817, a letter, which is exhibited, and the substance of which is set forth. (Exhibit I.) That the legatees never received any moneys As to the Kentucky lands, the defendant states he is informed, and believes, that the testator was not the owner of any lands in that State at the time of his death, or since; that a suit was there pending many years before his death for 4,000 or 5,000 acres of land, and prosecuted till the 8th of January, 1818, when judgments were recovered, etc., is not denied; and the defendant has been informed that Primrose, the pretended agent of the complainants, in the year 1836, made a compromise he received at least $10,000 of the money of the afterwards. That Savage never made a final settlement of his accounts. That, after his removal from South Carolina, with the tenants in possession of the said lands, ❘ estate. 1. That that title, upon his death, escheated That, since filing their bill, they have received the testator's cash book, from which it appears that Savage was indebted, as is alleged in the original bill, at the time of the testator's death. |