Newman v. Clyburn

Citations

• 41 S.C. 534
• 19 S.E. 913
• 1894 S.C. LEXIS 132

Syllabus

<p>1. Parties — Estoppel.—A plaintiff to a decree for the settlement and partition of an estate, which gave leave to any party to the cause to apply at its foot for an order of sale to enforce the payment of amounts due by plaintiff, cannot object to an application for an order of sale by the legatees of one of the defendants who died several months before the decree was rendered, the plaintiff being the executor of her will.</p> <p>2. Executor of Creditor — Presumption op Payment. — Plaintiff having been decreed to pay to defendant a sum of money for equality of partition, and having become executor of defendant’s will before payment made, cannot claim a presumption of payment as against the legatees of defendant by reason of the lapse of twenty-four years, some of these legatees having been infants when the decree was rendered, and it being established that no payment had been made.</p> <p>3. Will — Description op Property. — A testamentary gift of testatrix’s share of the estate of her mother, construed to refer to the estate left by her father thirty years ago to her mother for life, with remainder to testatrix.</p> <p>4. Debtor and Creditor — Payment—Securities—Case Criticised. — Where a debt is secured by a pledge of land, and the debtor becomes the executor of the creditor, he becomes chargeable therewith as assets of the estate, but never having actually paid the debt, the legatees may treat it as unpaid to the extent of enforcing their security. Chick v. Farr, 31 S. 0., 473, followed.</p> <p>5. Executor — Account—Place oe Trial. — These legatees should have proceeded against this executor in the county where the will was proved, and not by petition in the old action in another county.</p>