*Union, Pinckney District.*

Heard before Chancellor Thompson.

CASE XSEtl.

#### John Powel *vs.*John P. Thompson and wife.

The colirt will order the husband of an executrix to give security tor the property of the estate in his hands, on account of such misconduct as raises a strong ground of apprehension of the assets being wasted,

FEB’Y, 1811.

The hill was filed by the legatees of James Powei deceased, to compel the executors of the will of the said Powei, to give security for the due execution of the will.

There was a provision in the will, (after a number of specific legacies,) that the whole of the testator’s plantation, which he then possessed, together with all his un~ bequeathed lands, negroes, horses, cattle, &c. should be disposed of in the following manner, viz. That the wife and children of testator . should live together on said plantation, as long as the wife remained a widow, and the children under *age;*and that they should have the whole of the benefit of the said property for their support, and for the education of the children ; but if' they should not agree to live together, that then the *163stock should be sold, and the negroes lured out, and the plantation rented; and that the benefit of the whole should be applied to the aforesaid purposes of maintc-nance and education; and that when .the children should come to lawful age, the whole of the said property then remaining, should be sold and equally divided among the legatees.

The widow was the only qualified executrix living'* and she afterwards married John P. Thompson. Two of the children are some years undey age.

The bill stated that there was danger of the said John P. Thompson’s wasting the property, before the period at which it is liable to ho sold and divided. That lie does not manage it with prudence and economy: — - That his own affairs are in an. embarrassed situation y and ho is in the habits of dissipation and extravagance,The complainants pray that he and his wife may bo compelled to give security to execute the will according *to*- the provisions of it, and to give security to account fop and pay over to the legatees,, at such time as he ought, by the provisions of the will, such sums as may at that time be due to them I’cspcctivcly.

At the hearing of the case, tlie c'oniplainants.proved, that Thompson has sold notes which were the property of the estate at a discount; one in particular at a discount' of 28 or 38-per cent, and another at some discount not specified.

They then offered and were about to prove the following facts :■ — 'That Thompson was insolvent,* — that he liad conveyed by deed to his own children all the property that he had; — 'andthat he had mortgaged a negro belonging to the estate of Pdwel, for a private debt of his-own.

The complainants, however,• confessed that they did not expect to prove that Mr. Thompson-had lost or destroyed any particular part of the testator’s estate; but only that the estate was' in danger from the embarrassed situation and the conduct of Mr. Thompson.

The judge held, that if the whole of this was proved, *tl*would not authorize tho court to decree security, and *164therefore dismissed the bill, witliout proceeding further w;pa y10 evidoace.

'X’lto complainants appealed from this decree, on lh« ground that the circumstances proved and offered in evi{¡ence¡i manifested a necessity that the defendants, as executors of ike will mentioned in the biil, should give security according to the prayer of the bill, and that they should have been decreed to give suck security.

Tbe appeal was heard by the chancellors James, Thompson, Bcsaussurc and Gail lard.

Mr. Gist, for the respondent,

contended that the executor ought nojto be compelled to give security. That the testator hejosed confidence in the executrix, and the court ought not to interfere, and order security, unless there be very gross misconduct, and actual waste of the assets of the estate. That though the executor had sold •some of the notes of the estate, he had since accounted for them fully j and though ■ he had mortgaged a negro slave of the estate, for his own debt, he had afterwards paid the debt and redeemed the slave. There was, therefore, no actual waste. That the apprehension ox waste is not a just ground to order security; nor the smallness of the executor's property; nor his conveyance of tiiat property to his children — for these only furnish grounds of apprehension. — SccSEq. Cases Abr. 420.

If the court should order security, and the executor should not be able to give it, then you tpho away the trust and authority given by the testator.

Mr. Hooker, {hr the appellant, contended,

that the actual sale of lire notes of the estate at a discount, and the mortgage of a negro of the estate, for a private debt, would be sufficient acts to induce the court to order sc-’ curity to be given by an executor, and still more strongly by the husband of an executrix. Tiiat these acts, connected with his conveying away bis property to his children, excited such-strong grounds to apprehend a loss, that the court would interfere and compel security to be given. — Sec 1 liq. Cases, 238 ; 2 Vern. 249, House vs. Noble ; Ainb. ST'S, Farrar vs. Trentes.

*165The court unanimously reversed the decree of the 'circuit court, and ordered, “ that the defendants should give security to the commissioner, to the amount of the property belonging to-the estate of James Powci$ J. P. Thompsou, 011c of the defendants, and husband of the executrix, having been guilty of misconduct in relation thereto.

The court of appeals afterwards, in May 1812, made an additional order, correcting an error in the Christian name of Towel, on certain terms.