#### *Thomas Finley, adm’r. et al.*v. *A. Hunter, ex’tr. et al.*

Columbia,

Nov. 1849.

Testator, in the first clause of his will, after making an absolute bequest to his wife, devised, and bequeathed to her the land on which he resided, together with all his negroes and property of evety kind whatsoever, that he might die possessed of, for her use during her natural life. The second clause is as follows — “ *After the death of my wife Jane,*and after the payment of the several legacies, &c. I give and bequeath to Reuben Finley, of the State of Tennessee, &c. the aforesaid tract of land, together with all the negroes, and *all the property belonging to nvy*estate, of what kind soever, real and personal, *at the death of mj said wife Jame,*to him and his heirs forever.” The Court was of opinion that the testator intended to give to his wife the use and benefit of the property specifically, for her life, with all the lights and privileges incident to its possession and enjoyment; and therefore *held,*that at the death of the wife, her executor was not accountable for the value of the property at the time it went into her possession, but that it was to go over to the remainderman such as it remained at the time of her death; in the condition it was after her specific and legitimate use of it during her life.

"Where money is given to onefor life, the life-ten ant is entitled to the use or interest of the money, and at his death, the principal is to be accounted for to the remainderman.

Where a life estate is created in live stock, consisting of flocks or herds, the rule is that the original stock must be kept up or accounted for, unless it has been diminished or destroyed without neglect or default on the part of the life tenant.

*Before*Caldwell, Ch. *at Abbeville, June,*1848.

Caldwell, Ch. This case was presented on exceptions to the Commissioner’s report.

*Plaintiff’s Exceptions.*

“ 1. Because the Commissioner *held*that Alexander Hunter, the executor of the tenant for life, Jane Finley, was liable to account for only so much of Thomas Finley’s estate as re*79mained in the possession of the tenant tor life, at her death, or the *corpus*of the personalty bequeathed to her use for life, which went into her possession.

1 McMul. E. R. 166.

“ 2. Because from the sum of $1,757 40, the value of articles that went into the possession of the tenant for life, at the death of the testator, after excluding specific legacies, the Commissioner deducted the sum of $269 98f, being the value of sundry articles as given in the appraisement of Thomas Finley’s estate, which at the death of the tenant for life were so diminished in value as to amount, at the sale of tenant for life’s estate, to only the sum of $105 01-J.

“ 3. Because the Commissioner *held*that according to his construction of Thomas Finley’s will, the tenant for life was not liable to account for any property of testator that went into her possession ; and of the whole estate that so went into her. possession, gave to complainant only the sum of $105 01^, the value of the articles which remained at the death of the tenant for life.”

“ 6. Because the Commissioner erred in not charging the estate of Jane Finley with the sum of $283, money which went into her hands at testator’s death.”

These four exceptions bring up the questions that arise under the will of Thomas Finley. After the testator had bequeathed several slaves and other personal property to his wife Jane Finley, absolutely, he devises and bequeaths as follows, “that she may have a comfortable support and maintenance, I give her the tract of land on which I now live, containing 250 acres, situate on Sawney’s creek, in the District and State aforesaid ; together with all my other negroes and property of every kind whatsoever, that I may die possessed of, *for her use during her natural life, 6pc.*After the death of my said wife Jane, and after the payment of the several legacies herein mentioned, 1 give and bequeath to Reuben Finley, of the State of Tennessee, Wheelwright, whose mother’s maiden name was Catharine Kinder, the aforesaid tract of land, together with all the negroes and all the property belonging to my estate, of what kind soever, real and personal, at the death of my said wife, Jane, to him and his heirs forever, on the following conditions,” «fee.

The first question is as to the cash on hand at the testator’s death; if that had been *the only*article bequeathed, there would scarcely be a difference of opinion as to what was intended *by*the testator; the tenant for life was entitled to the use, or interest, of the money for her life, and her estate is liable at her death to account for and pay over the principal to the remainderman. — -The Commissioner has properly sustained the sixth exception in his report on the exceptions.

The question as to the other articles of personal property, is, I think, no longer open, since the cases of *Patterson*v. *80*Develin,*and of *Robertson et al.*v. *Collier et al.*The principle was clearly expressed in the former, and recognized and approved in the latter case, *“*that the perishable articles cannot be considered as belonging absolutely to the tenant for life, neither can they be sold, because they are necessary to the preservation of the estate. The tenant for life must therefore be considered as a trustee for the remainderman, and must preserve the estate, with all its appurtenances, in the situation he received it.” In illustrating this view, Chancellor Harper says, “the tenant for life is entitled to the use of the estate, but jt is such a use as a prudent proprietor would make of his estate. The profit of an *estate*is the nett income, after defraying all necessary expenses ; and to renew a plough that is worn out, or replace a horse or mule that dies, comes under the head of necessary expenses. Thus the relative rights of the tenant for life and remainderman will be the same, whether the estate be sold and the proceeds vested, or retained in kind. If at the termination of the life estate, all the articles of the sort mentioned, are not in as good condition as when he received it, the tenant must make good the deficiency.”

If I did not consider the question settled by other cases, I should be inclined to a different opinion as to some of the articles ; but I feel bound to adhere to established rules, and it would be unsafe to depart from them, unless the terms of the will clearly expressed that the testator intended that a different principle should be adopted in the disposition of his estate.

The 4th and 5th exceptions are as to the allowance of counsel fees to the executor for professional advice and services. The Commissioner reports on these exceptions as follows : — “ The first item of counsel fees referred to in this exception, (4th,) to wit. *$200, is*included in the return of A. Hunter, executor of Jane Finley, who is also the executor of Thomas Finley, and was for counsel and advice in relation to the estate in litigation, in this case, prior to the filing of the answer. Upon a more mature reflection, the last counsel fee, to wit, $200, for the present litigation, the Commissioner reduces to $100; and his report is so modified, in all other respects; this exception is overruled.” Upon the 5th exception, the Commissioner reports: “ The counsel *is mistaken as to the reference*; upon one of the references held in this case, it was distinctly announced by counsel, in the presence of Mr. Thomson, that a reasonable fee was claimed to be charged upon the balance found in A. Hunter’s hands; and although no testimony was offered to fix the amount— supposing it to be allowed — the Commissioner being fully aware of the professional services rendered, thought it not going beyond the limits of his duty to fix it himself, and *81thinks the fee, modified as above, very reasonable indeed. The only question with the Commissioner was whether the, balance found in the executrix’s hands should be charged with it.” There is no difficulty as to the principle upon which counsel fees are to be allowed to an executor or administrator; when an estate requires professional services to prosecute or defend its interest, and where the executor or administrator does not litigate for his own benefit, he will be allowed a counsel fee ; so he will be allowed fees paid for general advice as to the most proper and profitable course of administration; but where he fails to do his duty, and is called to account, or litigates questions on which he is individually interested, or where he resists the claims of those interested without some reasonable ground, he is not entitled to charge the estate with costs or counsel fees that he has incurred. — ■ *Warden*v. Bartz, *Wright*v. *Wright, Ther-man*v. Angel, *Wham*v. *Love.*The evidence of the mount or value of the services, is wha.t the Commissioner states of his own knowledge; and this, as the charges appear to be reasonable in his opinion, might be sufficient, it they had not been objected to, and if it were not that there was some mistake of the plaintiff’s counsel about the claim. In the despatch of business, such accidents will occur; and to confirm the report without giving the party a further opportunity of examining the charge of the counsel fees might operate as a surprise; and as the report will have to be modified, these exceptions are recommitted with it. The Commissioner will report the specific services rendered, and their value.

2 McC R. 76 Ib. 186. 2 Hill, Ch. R. 26 Rice’s Eq. R. 51.

2 McCord’s Ch. R. 84 of Law Rep 56.

*“ 7.*Because the Commissioner should have allowed the administrator of Reuben Finley the hire of the slaves, after the death of tenant for life, until the end of the year 1845.” The tenant for life, Jane Finley, died on the 29th of November, 1845. The construction of the will of Thomas Finley, expressed in this opinion, and the decisions in *Leveret et al.*v. *Leveret et al.,*and in *Herbemont, ádntir.*v. *Percival,*— pre-elude this charge from being sustained against the estate the tenant for life.

“8. Because the commissioner allowed commissions on sums received by A, Hunter, belonging to the estate of the remainderman.” The Commissioner in his report on the exceptions, sustains this exception, except as to the commissions on the last item of rent and hire, which (he says,) should be allowed the executor, inasmuch as the rent and hire were by the consent of all the parties.”

An executor or administrator is entitled to retain or receive for his ordinary services *2%*per cent, for receiving, and 2J per cent, for whatever he pays in credits, debts, legacies, or during the course or continuance of his *82ment or administration; bnt the funds so received or paid ; must belong to or arise out of the estate of his testator or intestate. This principle cannot apply to the receipt and disbursement of the funds of another person. If there was any special agreement for him to receive other funds, it must provide for his commissions, or they cannot be allowed. A private agent is not entitled to any • such claim, unless he make it a part of his *contract.*— (Randall, *adm’r.*v. *Pinck-*ney, quoted in *Mack-peas*v. *Heath et al.*

1 Hill C. E. 383.

*Defendant Excepted,*

“Because the Court having ordered, by its previous decree, that the costs of A. Hunter should be paid out of the estate of Thomas Finley, the Commissioner erred in reporting *his*costs should be paid out of the estate of Jane Finley.” The decree of Chancellor Johnston is conclusive; it orders the costs “ of A. Hunter and Thomas M. Finley, as representatives of Jane and Thomas Finley, and Reuben Finley, *respectively,*to be allowed out of *the estate represented by them."*

By taxing the items of costs incurred by the representative of each estate separately, it will be easy to apply the principle, and to determine which estate is liable.

It is therefore ordered and decreed, that the Report of the Commissioner be modified agreably to these views, and that it be recommitted to him for that purpose.

The defendant, A. Hunter, executor of Jane Finley, appealed from the decree, on the grounds :

1st. That *by the terms of the will of Thomas*Finley, nothing whatever is given to the remainderman, Reuben Finley, except such property as should exist and remain *in kind*after the use of it by the tenant for life, Jane Finley. And to require her executor to account for tho value of the property at the time it went into her possession, *isioholly inconsistent with the intention of the testator.*

2d. Because his Honor erred in sustaining the 8th exception to the Commissioner’s Report, allowing commissions to the executor upon sums received for the rent and hire of land and negroes, which by the decree were ascertained to belong to the remainderman, but which were rented and hired by the executor, as of the estate of Thomas Finley, up to the rendition of the decree ascertaining the rights of the parties.

3d. Because it being the duty of the executor to rent and hire the land and negroes, *daring the litigation,*he is entitled to compensation for the *same;*and if he is not entitled to commissions *eo nomine,*he has a just claim for services rendered against the remainderman, Reuben Finley, which this Court will recognize and enforce in the accounting between them.

*Perrin, McGowen*& *Wilson,*for the motion.

---, contra.

*83thomas finley’s will.

In the name of God, amen — I, Thomas Finley, of the i. State of South Carolina, and District of Abbeville, Planter, being in health of body, and of sound disposing mind, memory and understanding — praise be to God for the same — do make and ordain this my last will and testament, in manner following — that is to say.:

I give and bequeath to my dearly beloved wife, Jane Finley, the following part of my estate, namely; negroes Finder, Tom, Jude, William, Caroline, Milly and Rose, and all my beds and bed-clothes, with my mahogany table, cupboard and cupboard furniture, and kitchen furniture — to her and her heirs and assigns forever. That she may have a comfortable support and maintenance, I give her the tract of land on which I now live, containing two hundred and fifty acres, situate on Sawney’s creek, in the State and District aforesaid, together with all my other negroes and property of every kind whatsoever, that I may die possessed of, for her use during her natural life. And I hereby declare that the bequests and provision hereby and hereinbefore made to iny said wife, Jane, if accepted, is to be taken and received by her in bar and in lieu of dower in my estate.

After the death of my said wife, Jane, and after payment of the several legacies hereinafter mentioned, I give and bequeath to Reuben Finley, of the State of Tennessee, Wheelwright, whose mother’s maiden name was Catharine Kinder, the aforesaid tract of laird, together with all the negroes and all the property belonging to my estate, of what kind soever, real and personal, at the death of my said wife, Jane — to him and his heirs forever, on the following conditions, viz: that he emancipate all the female children of my two negro women, Nancy and Jinny, or cause them to be sent to the State of Indiana or Ohio, where the laws of the State will liberate them. The said female children are to be set free, as they respectively arrive at the age of twenty-five years, and all their children with them, should they have any; as it is my wish and desire to put a stop to the slavery of the race of negroes belonging to me in future. I also request that said Reuben Finley have marble head-stones put at the head of my and my wife Jane’s graves, with our names and the dates of our births and deaths respectively engraven on them. Also to enclose our graves with a stone wall of five feet high, with a shutter to the door, of some durable materials, and that spot of ground to be reserved, and never conveyed away with the tract of land. I was born the 11th of February, 1757, and my wife, Jane, was born the 8th of November, 1765.

I give and bequeath to my niece, Ann Finley, my negro *84boy, Franklin, to her and her heirs forever, and also my negro girl, Peggy, until she arrive at the age of twenty-five years, at which age she is to be emancipated, or sent to the State of Indiana or Ohio, where the laws will free them; and her children, if she have any, shall go free with her. The negro boy, Franklin, is not to be bartered or sold out of her family, where I trust he will be well treated.

1 Hill Ch. 370.

I give and bequeath to Thomas Fiuley Mitchel, son of Francis Mitchel, of the State and district aforesaid, my negro boy, Robert, to him and his heirs forever, hoping he will use him well.

And I do hereby nominate, constitute and appoint my trusty friends, Alexander Hunter and John Clark, executors of this, which I declare to be my last will and testament. In witness whereof, I have hereunto set my hand and seal, this day of in the year of our Lord eighteen hundred and twenty-three. Thomas Finley.

Signed, sealed, declared and published, by the above mentioned Thomas Finley, as and for his last will and testament, in the presence of us, who, at his request, and in his presence, have subscribed our names thereto as witnesses.

Thomas Hunt,

Thomas Brough, Jr.

William Clark.

*Curia, per*

Dargan, Ch.

From the view which the Court has taken of this case, I am relieved from the necessity of discussing the embarrassing questions raised and discussed on this appeal. I am not called on to apply, as the Chancellor did in his decree, the doctrine asserted to have been determined in the cases of *Patterson*v. *Develin*and *Robertson*v. *Collier.*This case does not call for any expression of opinion on the questions raised in those cases. I, therefore, express no opinion as to the extent of the liability of the tenant for life of personal property, to the remainderman, in cases like those alluded to.

This case is adjudged upon the strong and peculiar phraseology of the testator’s will, and a manifest intention appearing from the expressions he has employed in the gift to his wife for life, and the limitation over. In the first place, it is a case entirely different from that of *Robertson*v. *Collier.*It is not the case of a gift of a plantation, negroes, stock, provisions, &c. to one for life, with remainder over to another. Thomas Finley, by his will,' gave, out of nineteen negroes, (one of them old and a charge) six of said negroes, and a considerable portion of his household goods, to his wife, Jane Finley, to her, her heirs and assigns forever. And, that she might have a comfortable support and maintenance, he gave her the tract of land on which he lived, together *85with all his other negroes and property, of every kind whatsoever, that lie should die possessed of, for her use during her natural life. At his death, the surviving wife, under the last mentioned clause, took into her possession, and has enjoyed, all the property given to her for life; consisting, (besides the laud and the negroes) of $283 in cash, and of various articles of personal property, generally possessed’by a planter of his means, living on his farm; namely, of horses, cattle, hogs, sheep, carriage, wagons, agricultural implements, and provisions. Jane Finley being dead, her personal representative is called upon to account to the remainderman for the various articles of personal property, of which, by the will, she was to have the use during her life. And some of the articles being consumable in their use, and having been consumed, and some of them having been totally worn out, by the wear and tear incident to their use and the operation of time, and others, though remaining, having become deteriorated in value from the same causes, the question is, upon what principle is the estate of the life tenant to account?

This Court discovers in the will itself a solution of this question. The second clause of the will is as follows:— “ after the death of my wife, Jane, and after the payment of the several legacies, &c. I give and bequeath to Reuben Finley, of the State of Tennessee, <fcc. the aforesaid tract of land, together with all the negroes, and *all the property belonging to my*estate, of what kind soever, real and personal, *at the death of my said*wife, *Jane, to*him and his heirs forever.” The Court is of the opinion, that the testator intended to give to his wife the use and benefit of the property, specifically, for her life, with all the rights and privileges incident to its possession and enjoyment. *All the property belonging to his estate at the death of his*wife, *he gave to Reuben Finley after the death of his loife.*Such as the property remained, *at the death*of his wife; in the condition it was, after her specific and legitimate use of it during her life, it was to go over to Reuben Finley. It follows from this, that her estate is not responsible for articles that were consumable in their use; nor for the horses, mules or oxen, that died from disease or old age; nor for the destruction of articles that were worn out and went to decay in their lawful use; nor for the deteriorated value of those that remain, whose value has been impaired by the abrasions of time. In regard to the articles that are forth-coming, as well as those that are not, the question will be, whether they have been rightfully used and enjoyed by the tenant for life. If this be decided in the affirmative, the estate of the life tenant is not liable, and the remainderman must take the articles that remain, in the condition in which he finds them. *86In regard to the cash, the principal must be accounted for, an(j ag t0 jjye st0CiC) jn flocks or herds, the rule is, that the original stock must be kept up or accounted for. These are re-productive, and, with good management, perpetuate themselves. Yet even in regard to this kind of property, the life tenant will be permitted to shew that they have been destroyed or diminished without neglect or default on her part.

The decree is modified, and the report is referred back to the Commissioner, with instructions to state the accounts in conformity with this decree. In all other respects the decree is affirmed and the appeal dismissed.

Johnston & Dunkin, CC. concurred.

*Decree modified.*