Kerr v. Butler

2 S.C. Eq. 279

• Court: Court of Chancery of South Carolina
• Decided: October 15, 1804
• Status: Published

Opinion

.-Chancellor MaRshauu

afterwards delivered the de-e ..n cree ot the court.

. . # In considering the points of this case submitted to the court by the report of the master, the first is that of three. several sums of money paid by Elizabeth Hill at the request of her husband on his death bed, after the making of his will: although it has been clearly proved such request was made by the testator, and the monies accordingly-paid by his executrix, yet as the payments were not authorized by the will, the court cannot allow the same in the accounts of administration. If the court were to do so, it would as to those sums be a repeal or alteration of the will, directly contrary to the act of assembly on that subject, passed in the year of our Lord, 1789; indeed the precaution has not been taken to prove according to the directions of that act, the said request of Duncan Hill as a nuncupative will. The legatees under the will, when of full age may from a sense of justice reimburse the sums paid by Elizabeth Hill, but this court cannot order it. Neither will the court allow the complainants the sum of one hundred and eighty-five pounds charged for the board of Henry Duncan Hill, provided by his mother Elizabeth Hill. Trye it is, that by the will, the testator gave the whole income and profits of his estate to bis wife during her life; but the court will not suppose on the part of the testator an intention so extraordinary as leaving his infant son for a series of years without the means of maintenance or education, or that an account for these purposes was to be kept until the son came into the possession of his fortune, and then to be paid out of the capital thereof; but the court will rather suppose the testator intended his wife to take the profits .of his estate as well for the support of his sou, as for her own use. The several other sums of money mentioned in the report, are duly proved; it is therefore decreed that the complainant do x eco ver the amount thereof with interest, to be paid out of the estate of Duncan Hill, subject nevertheless to a de-diction of one thousand eighty nine dollars and , twenty-nine cents, for monies due Duncan Hill, and received by the said Elizabeth Hill from James Hamilton, but omitted to be brought into her account of administration. It is further decreed that the report of the master with the foregoing modifications be confirmed, that the defendant Charles Paxton Butler, out of the profits of the estate of Duncan Hill, do pay to the complainant Margaret Kerr for the maintenance and support of Henry Duncan Hill, the sum of one hundred and fifty pounds annually, to be computed from the time he chose her for his guardian, and that the costs of this suit be also paid out of the estate of Duncan Hill.