Buckingham v. Wesson

Campbell, J., delivered the opinion of the court. The decree sustaining the demurrer to the cross-bill is affirmed. The crossAill presents no ground for relief of any [533] sort. Its allegations as to the receipt showing a right to a credit on the note to Walker fall short of the well-settled rule of diligence required in such cases, and the claim of Mrs. Buckingham to the assets of the estate appropriated bjr her is purely defensive, and is asserted fully in her answer, rendering her cross-bill both unnecessary and improper. The decree subjecting the lots in Aberdeen and the land obtained from Cocke to liability for the demands of creditors, is correct, and is affirmed. S. H. Buckingham is chargeable with knowledge that the lands were being misapplied by the executrix; and, even if he paid full price,. with his own money, for them, he had no right to aid her by his means in appropriating the estate to her own use. There was no want of power in Mrs. Buckingham under the will to sell land at private sale. It is not true that one empowered by a will to sell land, without any indication of the mode of selling, must sell at public auction, or after public notice. The law is that, unless the power otherwise provides, the sale may be either at public auction or on private arrangement, according as the one or the other may be deemed most expedient. If there are several modes of executing a power of sale, and no directions are given by the instrument creating it, the donee may select his mode. 3 Redfield on Wills (2d ed.), 567; 2 Perry on Trusts, § 780; 4 Kent Com. 331; Bond v. Zeigler, 1 Kelly (Ga.), 324. The statutory regulations for sales by executors and administrators apply alone to such sales ordered by the courts in pursuance of law, and have no reference to powers of sale conferred by wills. The will in this ease confers on Mrs. Buckingham power to sell land, without indicating in what way or on what notice she should sell, and she could lawfully sell at private sale. The property conveyed by her is held to be liable to creditors, not for want of power in her to convey the title at private sale, but because of the purpose for which the sale was made, participated in by S..H. Buckingham. Mrs. Buckingham is not a competent witness to prove her claim against the estate of her deceased husband, arising from any dealings had with him. But she is competent .to prove her transactions since his death, although the creditors of her [534] husband, whose representatives are now litigating with her, are dead. She is not proposing to prove her own claim against the estate of either creditor of her husband, nor asserting any right as against such estate, founded on any alleged transaction had with such decedent in his lifetime. Jacks v. Bridewell, 51 Miss. 881. S. H. Buckingham is a competent witness. The decree dismissing the bill and denying all relief as to the “ Harris land ” is wrong, and will be reversed. In so far as assets of the estate can be traced into that land, it can be charged with them in the hands of S. H. Buckingham, who knew all about the payment for it, and whose purchase of that land is just like his purchase of the other. In so far as' the private means of Mrs. Buckingham were paid for this land, it was hers, and her vendee is entitled to be protected as to that; but- to the extent that part of the estate of' the testator was put into it, he is a trustee of the legal title for creditors, who are1 entitled to have the land charged accordingly. The test is whether the land was paid for by the means of Mrs; Buckingham, or of her testator, held by her as a trust fund for his creditors. If, in truth, they were hers, having become such by rightful appropriation, to reimburse herself proper advances for said estate, the land bought with them was hers, and became her vendee’s. If it is true that Mrs. Buckingham was in advance to the estate for legal disbursements, to the full amount of the assets of the estate, which she used in paying for this land, then the land was hers individually. Mrs. Buckingham seems to have thought that she was largely the creditor of the estate for advances made; but that does not satisfactorily appear from the record. It could be made to appear only by a full and complete accounting, wherein Mrs. Buckingham should be charged with all her receipts and liabilities as executrix, and allowed for all legal disbursements ;■ and nothing of that kind occurred. The law made Mrs. Buckingham, as executrix, a trustee for creditors of the testator. They are entitled to be paid out of the assets. If Mrs. Buckingham has appropriated to her own uses any of those assets, she must show a clear right to do so; and, until she has done this, they must be held .subject to creditors. [535] Most of ber demand, as disclosed by the' record, is inadmissible, being for hire of slaves which accrued to her husband. To another large part she is not competent as a witness; and as to what she testifies she expended of her means to pay debts of her testator after his death, she has not shown that the disbursements were proper, and she has not rendered any account of her liabilities for receipts for account of said estate. She may do this in the further progress of the cause. The case of Yandell v. Pugh, 58 Miss. 295, is decisive of the objection urged to the demand of the complainants in the bill, on the score of lapse of time and laches. Decree accordingly.