Billingslea v. Young

Eisher, J., delivered the opinion of the court. This was a petition filed by the appellants in the Probate Court of Madison county, alleging that the appellant, Mrs. Billingslea, as the widow of one Madison Gr. Nash, deceased, is entitled to an interest of one-half of the estate of the deceased ; that the appellee, Young, had qualified as executor of the last will and testament of the deceased; that more than one year had elapsed since the grant of letters testamentary to the executor. The petitioners offer to execute a refunding bond, with security, [101] &c. The petition then proceeds to set forth definitely the situation and nature of the estate, and prays a decree for distribution, &c. The executor, by his answer, sets up as a defence, that the said Madison Gr. Nash, in his lifetime, conveyed the estate to the wife of the executor, and that she is entitled to the same. He also states that he has not made any inventory of the estate ; and that the same was sold with the consent of the petitioner, &c. It may be stated in general terms that the petition and accompanying exhibits show a clear case for relief; and the question must therefore be, whether the executor has succeeded in establishing his defence. First, as to the deed under which Mrs. Young claims. It appears that the testator, Nash, executed to Mrs. Young a deed, by which he conveyed to her his interest as a legatee in the estate of his father, reserving, however, to himself the right to retain the possession and enjoyment of the property during his life, and to revoke the deed if he recovered from the sickness which then afflicted him, on paying to Mrs. Young, the grantee, one hundred dollars. The record shows that he recovered from the sickness under which he labored; that he, by an instrument set out in the record, revoked the deed; and, it further appears, that the grantee executed to him a receipt for the one hundred dollars which was to be paid to her upon the revocation of the deed. Upon this state of case, it is insisted by counsel, that the title to the property having vested in the grantee, it could only be divested by an instrument executed jointly with her husband, as provided by law; and that as the receipt of the wife, could not operate to convey her title, it is void. We disagree with counsel on this point. The grantor reserved to himself the power to annul the deed; and it was his act, and not the act of the grantee, which was to destroy her title, if in fact it ever vested. The receipt was wholly unnecessary as a mode of reconveying the property. The contract was, that the deed was to become inoperative and void upon the repayment of the one hundred dollars, and the title to remain with the grantor, as if the deed had never been executed. The receipt was intended to evidence the payment of the money; and, the question is, whether, being the act of the wife, the sanction of the husband not appearing, it was good for this purpose? The wife was the party to whom [102] payment was to be made, and it can scarcely be plausibly argued, that a person to whom payment is to be made, cannot give tbe proper evidence of the fact. The wife having the right to receive the money, the power to execute the proper receipt for it would be implied. It is next said that the executor has failed to return an inventory of the estate, and that distribution cannot, therefore, be decreed. This position, if it be good for any purpose, it is to show, that the executor has not performed his duty as required of him by law. The question is, whether 'the petitioners are entitled to a distribution of the estate ; and if so, the power to make distribution carries with it the power to compel the executor to make an inventory, to render an account, and to do everything to ascertain the nature and extent of the estate to be distributed. We have already said that the' petitioners from the showing made are entitled to distribution, that the defence set up cannot avail the executor, and this being the attitude of the case, the first inquiry of course is to ascertain the estate to be distributed. If the executor had performed his duty according to law, and made the proper inventory, and settled his accounts at the proper time, the court would have been relieved of part of the duty now to be performed. But certainly a party, failing to perform his duty at the proper time, cannot insist that he is exempt from performing it at another time. The court, however, can have no difficulty in compelling an executor in default in making an inventory, and settling his accounts. There are other questions, which are hot very material, to be noticed, especially as there is no proof on the subject. One is, whether the executor, having kept the property together on a plantation, shall be accountable only for the crops, or for rent of the land and hire of the slaves. The executor, to justify himself in working the property, must bring himself either within the provision of the statute, or the terms of the will under which he acted, or show the consent of parties interested, and this consent may be shown either by positive evidence or presumed from the conduct of the parties. In the absence of a showing authorizing the executor to keep the property together, the distributee can of course make her election to take either the crops, or hire for the slaves, and it ought to be made by the petition itself. She will not be entitled [103] in this proceeding to recover rents for the land, because she could have proceeded at any time for her dower, and the Probate Court would have no jurisdiction as to the rents in her case. Decree reversed, cause remanded, with instructions to the court below to proceed according to this opinion.»