Ward v. Harrington

29 Miss. 238

• Court: Mississippi Supreme Court
• Decided: April 15, 1855
• Status: Published

Opinion

Mr. Justice Fisheb,

delivered the opinion of the court.

The object of this bill by the appellees in the court below, was to perpetually enjoin the appellant from enforcing certain executions against certain slaves and other property, which they claim as legatees under the last will and testament of Charles Loud, deceased. Upon final hearing the court below made a decree, according to the prayer of the bill; from which the present appeal has been prosecuted to this court.

The case, as it appears by the record, is substantially as follows: Charles Loud, the testator, having made his last will' and testament, died in the county of Holmes, some time during the year 1834. .By his will he directed his executors to keep his property, consisting of a plantation and. slaves, together, till certain of his children should arrive at full age; and to apply the product or income of said property to the payment •of his just debts and to the maintenance of his family.

It appears that at sundry times, a commercial house in the town of Tehula, doing business under the. name of Elliott & Worly, advanced to Thomas T. Loud, one of the executors, -divers sums of money, and various articles for the benefit of said estate. All moneys and articles furnished to the said executor, although'many of them were for himself individually, .were nevertheless charged to the estate of Charles Loud, deceased. Some time about the year 1842, Elliott & Worly having failed in business, and being largely indebted to Ward, Moffett & Co., transferred the account created by the executor, Thomas T. Loud, and charged to the estate of Charles Loud, to the said Ward, Moffett & Go. Robert J. Ward becoming the holder of said account, entered into an agreement with the executor Thomas T. Loud, to confess, as such executor, five judgments, for the sum of six hundred dollars each, in the circuit court of Holmes county, with a stay of execution till a certain time. Executions having ,issued upon two of said judgments, were, by the sheriff of Holmes county, levied upon the slaves in the possession of the appellees, which had fallen to them under the division of Charles Loud’s estate.

Waiving the consideration of the case, as it appears by the testimony taken on behalf of the .appellees, showing that the account, so far as it was justly chargeable against Charles Loud’s estate, had been fully paid; it may be safely rested upon the provisions of the will, under which the executor acted; and in virtue of which alone the appellant can hope to enforce his judgments, if such right exists, against the slaves in the possession of the appellees. The will gives the executors no power to encumber the property left by the testator, by the creation of new debts, or by the assumption of new liabilities. Whatever powers they possessed in this respect, extended only to the proceeds or income of the estate. If, as seems to be insisted in the answer, the money advanced by Elliott & Worly was used in the payment of debts which existed at the date of the testator’s death, or that the various articles furnished were necessary for the support and preservation of the estate, the income being insufficient for this purpose, these are facts which the party seeking to charge the property must clearly establish. Until such proof shall be made, he shows no case entitling him to relief in a court of equity. No such proof having been made, the decree of the court below must be regarded as correct.

Decree affirmed.