Stuart's Ex'ors v. Abbott

SAMUELS, J. It is somewhat doubtful Whether the receipt given by Gerard B. Stuart, one of the executors, to the defendant William Brown, should be regarded as intended to make a new and substantive contract variant from that made by the testator in his lifetime with the defendant Abbott. Conceding, however, that it was so intended, yet under the circumstances of the case, it should not be allow'ed to have that effect. There were three representatives (of whom Gerard B. Stuart was one) charged with the official duty of collecting the assets of the estate; and with the further .duty of conveying the land in the bill mentioned when the price of it should be paid. The only available security - for the debt, which is part of the assets, is the land itself, inasmuch as Abbott, the purchaser, is utterly insolvent; and the arrangement made by *Gerard B. Stuart, as understood by the appellees’ counsel, is an executory contract to waive, and renounce the only means of collecting a large proportion of the debt: In effect they would make it a contract to commit waste of the assets committed to the charge of the executors. 2 Wms. on Ex’ors 1104. Such a contract, if made, should receive no countenance in any court; it should not be enforced against Gerard B. Stuart himself; much less should the other executor and the executrix be compelled to unite in the devastavit. I am of opinion that the decree should be reversed, with costs to the appellants; that the cause should be remanded to the Circuit court with directions to render a deóree in favor of complainants against St. Clair Abbott for the balance due on his bond of June 26, 1823, with interest until paid, and costs of suit; and if the amount be not paid in a reasonable time to be fixed by the court, that the land in the proceedings mentioned, or so much thereof as may be necessary, be sold to pay the same and the costs of sale, on credits of six, eighteen and thirty months, for equal portions thereof, bearing interest, retaining the title as security for the price. If the money decreed to complainants shall be paid, that the deed filed in the papers be delivered to the defendant William Brown. The other judges concurred in the opinion of Judge Samuels. Decree reversed.