#### *William Parris and others*vs. *Amaziah B. Cobb and others.*

3?or any residuo undisposed of by the Trill, the executor is a trustee for the distributees, and liable to account directly to them.; — no administration is necessary.

The statute of limitations does not commence to run, in favor of a general agent, until the termination of tho agoncy.

An executor, claiming slaves under a gift (declared fraudulent) from the testator in his life time, not protected by tho statute of limitations — his adverse possession not having continued four years before the death of testator.

A deed of slaves and other personalty, reciting the consideration to be money advanced, &c., and love and affection, from a grandfather, ninety years of age, to his grandson and agent, sot aside as obtained by fraud and undue influence.

The donor had at the same time executed his will, appointing the grandson an agent executor: tho will had boen impeached on the same grounds on which the deed was now *impeached:*— Hold, that there was no variance between the decree setting aside the deed, and the judgment sustaining the validity of the will.

Principles upon which the Court proceeds in determining whether a gift by a principal to an agent, impeached on the ground of weakness of mind, fraud and undue influence, is valid or invalid — the same principles apply to all the variety of relations in which dominion may bo exorcised by one person over another: it should be made to appear, in *451order to support the gift, that the confidence has not heen abused; that all was fair; that the agent received the bountyfreely and knowingly on the giver’spart.

*Before*Dunkin, Ch., *at Anderson, June,*1852.

Dunkin, Oh. On the 27th September, 1847, Henry Parris died, at the advanced age of between ninety and one hundred years. He had made his will on the 28th April, 1843,.being at that time, according to the report of the Judge in a proceeding on that matter, ninety years of age. At the time of making his will, the testator had three sons, to wit: William Parris, complainant ; Moses Parris and John Parris; and four daughters, to wit: Eleanor Cobb, (wife of Henry Cobb, since deceased, and mother of the defendant, A. B. Cobb;) Laurania, or Lau-raney Jenkins, wife of Roily Jenkins ; Mary Mauldin, wife of Rucker Mauldin; and Elizabeth Gorden, and a lunatic daughter, Nancy Parris. By his will, the testator bequeaths a negro, Caroline, to the complainant, William Parris, and the negro girl, Harriet, to the complainant, Mary Parris, daughter of W m. Parris, and since the wife of the complainant, James Hickey. To Laura-ney Jenkins, he bequeaths some slaves; but it appears that these were already the property of her husband, Roily Jenkins, as well as a family which he leaves to his son, Moses Parris : all were in the possession of Roily Jenkins, at the' the date of the will, and had been for years previously. To his son, John Parris, he leaves five dollars, and to his daughter, Elizabeth Gorden, one dollar. He leaves the negro girl, Ann, to his executor, (the defendant, A. B. Cobb,) in trust, for his daughter, *Mary*Mauldin, for life, and on her death, the negro, with her increase, to be divided between the complainant, William Parris, and Eleanor Cobb. He directs that his daughter, Nancy Parris, should live with her sister, Mrs. Cobb, the slaves, Betsey and her five children, remaining with her, for her support; and at her death, he leaves the slaves to Eleanor Cobb and her heirs. To his grand-daughter, Elizabeth Cobb; he bequeaths the negro Sally and her increase. The land on which he lived, and his slave, Hence, he directs to be sold for the payment of his debts. The will contains no residuary clause. *452On the death of the testator, his will was proved m common form by the defendant, A. B. Cobb, who qualified as executor. He says in his answer, that in a short time after the death of Henry Parris, the complainant, William Parris, who resides in Tennessee, visited this State, and made a demand of the negroes specifically bequeathed to himself and his daughter ; that the defendant “refused to deliver them, because the estate was unsettled, and he had not had time to settle it — that the estate was considerably indebted, and there were no assets to pay the debts, except the specific legacies, which would require the legacies to the complainants to abate proportionallythat the complainant, finding he could not obtain the property specifically bequeathed, in company with other heirs at law, contested the validity of the will, which litigation was finally determined in favor of the will, by the Court of Appeals, in May, 1850. It does not appear at what time precisely the complainant came in and made the *first*demand for the negroes specifically bequeathed to him and his daughter; but from the answer, it is to be inferred, that the contest about the will soon followed the defendant’s refusal to give them up. Prom the record, it is shown, that “ the heirs commenced the contest against the will, on the 27th November, 1848.” A judgment was entered up against the heirs for the costs, on the 11th December, 1850; and the complainants, *having*satisfied this judgment, again made a demand of the negroes specifically bequeathed under the will, which had been established. The defendant admits that he refused this *second*demand, because the complainants did not “ offer to pay their part of the debts, and expenses of litigating the will, though they arranged the judgment for the taxed costs of the litigation.” The defendant further says, that he has no doubt, if he had delivered the slaves when demanded the *first*time, the litigation about the will never would have arisen ; or, if they had been delivered, when demanded the *second*and *third*times, this bill never would have been filed. It seems there had been a third demand when the parties *453met in the Ordinary’s office, soon after the second demand and refusal.

It may be important to inquire, what was the apparent condition of Henry Parris’s estate in the Autumn of 1848, when the complainants first applied for the property specifically bequeathed to them. The complainants were then told that the estate was considerably indebted — that there were no assets — and that the specific legacies must abate. It does not appear, nor is it suggested, that any statement was then exhibited. The appraisement was made 2d February, 1848, and the sale of the property took place within the month thereafter. No return was made to the Ordinary until 16th December, 1850 ; the controversy about the will having terminated in the Appeal Court, May, 1850. The appraisement, over and above the negroes, amounted to $ 103.24— the property sold appears to have amounted to $52.25— the whole amount of the testator’s indebtedness at the time of his death, (other than the *claims*held by the defendant, to be hereafter noticed,) was $38.87 — the funeral expenses and Ordinary’s fees brought the amount to $54.87. But the defendant avers, that, on certain transactions of his, as the agent of the testator, testator owed him a balance of $244.23, and as administrator of his father, Henry Cobb, deceased, $184.50. Whether anything, and how much, was due on these claims, will depend entirely, on an examination of the transactions between the defendant, A. B. Cobb, and his principal in his life time. Very much is it to be regretted, that the legal representative of the estate, who should defend its interests, and who alone has the adequate means of proof, is the only creditor calling for an abatement of the specific legacies to satisfy the demands which he sets up. It is, too, greatly to be regretted, that these demands were not specifically brought to the notice of the parties at an earlier date than the filing of the defendant’s answer.

In the Fall of 1848, four hundred and thirty dollars would have satisfied every demand which the defendant now insists on. This sum, too, would have been *apparently*to be paid from the *slaves*bequeathed to the complainants — the slave Ann, bequeathed to Mrs. *Mauldin*for life, and the *slaves*bequeathed *454to *Eleanor Cobb,*(defendant’s mother,) on the death of Nancy Parris, who had, in fact, pre-deceased the testator.

The will, however, was disputed, and as the defendant says, “ after a severe contest,” was finally established. The record was in evidence, together with the evidence of some of the witnesses. When the complainants, having paid the costs of the litigation, again demanded the negroes, they were met with the same reply. But, in addition to the former alleged indebtedness, the defendant now insists that the sum of five hundred dollars, for counsel fees in controverting the will, should be charged on the specific legacies, and, as will be presently shewn, on the *specific legacies*of the complainants *alone.*The effect of this would be to exclude the complainants entirely, as their legacies would probably be insufficient to satisfy the demands of the defendant.

Under these circumstances, the complainants were compelled to ask the aid of this Court, and in doing so, they insist, that the property really belonging to the testator was far more than sufficient to satify his just debts, which were few and inconsiderable, if any. The answer of the defendant substantially insists that the debts and charges should be paid by the complainants alone. Admitting the other specific legacies, he alleges that the slave *Ann,*bequeathed to Mrs. Mauldin, had been given by the testator to the defendant’s *sister, Elizabeth Cobb,*and that the slaves bequeathed to *Eleanor Cobb, defendant's mother,*had been given in testator’s life time, and were the property of her husband, Henry Cobb, deceased, and that the defendant took them as his administrator. In the contest concerning the will, one of the strongest arguments was, that the will was chiefly for the benefit of the defendant and his family. But, according to the narrative in the defendant’s answer, his family had no interest whatever in the will. On the contrary, his sister and his mother held by a title anterior to the will, and, in some measure, in opposition to its provisions. The answer insists that the testator left no property, except the two slaves bequeathed to the complainants, and $>52.25 worth of furniture, *455&c., and that the slave, Ann, which the defendant had caused to be appraised, was in fact not testator’s property at his decease, hut the property of defendant’s sister, under a parol gift of the testator. It is unfortunate here, too, that the instrument which the defendant is officially bound *to*sustain, derives, at least, no support from his efforts.

It is not proposed, at this time, to discuss the various issues raised by the pleadings. It is admitted, that the complainants are entitled to specific legacies under the testator’s will. The defendant insists that the estate of his testator is indebted to him — that there were no assets to pay these debts, and that the same, together with certain subsequent charges, must be paid by the specific legatees. On the part of the complainants, the indebtedness is denied, and it is, moreover, insisted, that the defendant has received property and funds, belonging to the estate, for which he ought to account, and for which he has not accounted. It is charged among other things, that about the time when the validity of the will was contested, in the Fall of 1848, the defendant carried out of the State, an'd sold, certain slaves of the testator; and that he also received certain oxen, cattle, horses, sheep, «fee., for which he has not accounted. As to some of these negroes, to wit: Charity, Frances, Eliza, David, Cinda, and Walker, six in number, the defendant admits, that, in 1848, he took them to Mississippi, and sold them in the aggregate for $3,000, or $3,050. But he avers, that Henry Parris made him a parol gift of these slaves in the latter part of the year 1841, or early in 1842, — and that when he was making his will, April 28, 1843, he executed to him a deed of conveyance for these slaves, and other property mentioned in the said deed, of which a copy is exhibited with the answer. The complainants object to the validity oí this deed, in consequence of the fiduciary relation in which the defendant stood to Henry Parris; the condition of his mind; and other circumstances detailed in the testimony.

It appears that, in the early part of 1841, the defendant went to live with his grandfather, Henry Parris. The defendant *456was a young man, and as well as the Court can collect, had previously been engaged in negro trading, (buying and selling slaves,) in which he had not been successful. His grandfather was far advanced in years, being then on the verge of eternity, and was besides, afflicted with a sore leg. He resided in Green-ville district, between three or four miles from the Court-house, on a place, which was afterwards sold to Mrs. Townes, for seven hundred dollars. The number of slaves which he then had in possession does not precisely appear. He managed badly — the slaves did not make a support for him and them, and he was not unfrequently indebted to Mrs. Townes for supplies.

The defendant appears to the Court, to have had the entire management of the property so long as they remained together, and to have acted as the agent of his grandfather from that time, (early in 1841,) until his death, in September, 1847. This is deducible, not only from the current of the testimony, but from the narrative contained in the defendant’s answer. When he took up his residence at his grandfather’s, the latter was in possession of his homestead, of a valuable slave named Hence, another called Bob, and probably of some sixteen other negroes, of more or less value. The defendant’s expression to one of the witnesses was, that he had come to take care of his grandfather, as he was old and childish. On the 28th April, 1843, the old man’s will was executed, with the provisions stated; on the same day, at the same time, the deed in favor of the defendant was executed. Not many months after this arrangement, the establishment near Greenville was abandoned. Parris removed to Anderson, to the residence of Henry Cobb, and the defendant took possession of the Garrison place, three or four miles distant from his father’s, taking with him the negroes included in the deed. It seems that, in ’45 or ’46, two negroes were given to Moses Parris. But between the period of the execution of the deed and the death of Henry Parris, in September, 1847, Hence, and probably Bob, and certainly his homestead, had been disposed of. At his death, the condition of his affairs was this: the defendant claimed and held the six negroes under the deed ; *457his father, Henry Cobb, or his mother, Eleanor Cobb, laid claim to the remaining six negroes enumerated in the fifth clause of the will, alleging a parol gift by Henry Parris, subsequent to the date of the will. The slave, Ann, bequeathed to Mrs. Mauldin, was claimed by defendant’s sister, Elizabeth Cobb, under another parol gift, said to have been made after the execution of the will; and, notwithstanding the sales of property above stated, the defendant now claims the only remaining ne-groes, to wit: the two or three bequeathed to the complainants, on the ground that they are the only assets to pay and satisfy the testator’s indebtedness to him, (the defendant,) contracted during his agency, and in the transaction of his business. So that, pending defendant’s management, sums, arising from the sales of property, to a not less amount than $1,600 or $1,700, have been appropriated in some way, and, excepting the two slaves to Moses Parris, all the other slaves of the testator, with the rest of his effects, will have become the property of the defendant, and his immediate family. It is this extraordinary result which has naturally stimulated an inquiry by the complainants, not merely why the other objects of the testator’s bounty were overlooked, or neglected; but why the poor pittance, allotted to those who were remembered and noticed, should be taken from them.

The prominent question presented, relates to the validity of the deed of April, 1843. The complainants submit, that a transaction of this character, between parties occupying these relations to each other, is always regarded jealously; and that- when the comparative helplessness, both physical and intellectual, of one of the parties is considered, the Court will at least demand the most ample and satisfactory proof, not only of the free will of the donor, but, more especially, of his distinct comprehension of the transaction in which he was engaged.

It is true, that this relationship between the parties would not necessarily invalidate a gift. As was argued in *Huguenin*vs. Baseley, 14 Yes., 273, “ there is no authority that a mere agent is not capable of receiving a gift.” But the propositions of Sir *458Samuel Romilly, in that case, received the distinct approbation of Lord Eldon. He says, that though the Court disclaimed any jurisdiction to annul donations merely as being improvident, and that it was not necessary to affirm that an agent might not accept any bounty; yet he says, the interference of the Court stands upon a general principle, applying to *all*the *variety*of *relations*in which *dominion may*be *exercised*by one person over another. The Court regards such transactions with a jealous eye. If the donor is a weak man, and liable to be imposed upon, the Court *“*will very strictly examine the conduct of the person in whose favor the gift is made, and, if it sees any arts or stratagems, or any undue means have been used ; if it sees the least speck of imposition at the bottom, or that the donor is in such a situation, with respect to the donee, as may naturally give an undue influence over him; if there be the least *scintilla*of fraud, this Court will and ought to interpose ; and, by the exercise of such a jurisdiction, they are so far from infringing the right of alienation, which is the inseparable incident of property, that they act upon the principle of securing the full, ample, and uninfluenced enjoyment of it.” Both the English and American decisions upon this subject are collected in White and Tudor’s leading cases in Eq., 2 vol., 406. No arbitrary general rule can be established ; nor, as is suggested in one of the cases, *“*would it be advisable that any strict rule should be laid down — any precise line be drawn. If it were stated that certain acts should be the test, or certain things should be required to rebut the presumption, how easy would it be for cunning men to place themselves beyond the denunciations of the law.” When these confidential relations are shown to exist, it should be made to appear, in order to support the deed, that the confidence has not been abused — that all was fair — that the agent received the bounty freely and knowingly on the giver’s part. The circumstances of each particular case are to be considered.

Let us apply these principles. The deed on which the defendant relies, bears date 28th April, 1843, and purports to *459have been executed in the presence of *W. P. Turpin.*The consideration is thus stated, *“*in consideration of four hundred and eighty-nine dollars and ninety-eight cents, money laid out and expended in and about the management of my business ; the justice of which account has been acknowledged by me, paid by Amaziah B. Cobb, and for the services, care and attention, and the love and affection to him, the said Amaziah B. Cobb, (my grandson,) I bargain, sell and deliver unto the said Amaziah B. Cobb, ‘ the slaves, Charity, and her child, Julian, Dave, Walker, Cinda, and Frances, and also the cattle, horses, hogs, and sheep, that are at this time upon the plantation,’ ” concluding with a general warranty of the said bargained property.

The defendant’s account is, that “ some time shortly before or after the *parol*transfer and delivery of the slaves,” (said to have been in the latter part of 1841, or early in 1842,) “ this defendant lent and advanced to the said Henry Parris, the money above mentioned, ($489.98,) during the year 1841, as has been before stated ; and when, at the drawing of the deed, this defendant learned that the said Henry Parris was about to convey to him the said slaves by deed, feeling grateful for his generous munificence, this defendant offered to include the note for lent money, which was accordingly done, and the said Henry Parris added and included the other property mentioned in the deed.” This deed had been prepared by Joseph Powell, some time before its execution, 28th April, 1843, but the said Henry Parris had delayed *its*execution till the making of his will.

A large number of witnesses were examined, as to the mental capacity of Henry Parris, at the time when this deed was executed. Some of the witnesses, such as John Watson, the Ordinary of Greenville district, *“*thought him not a man of sound mind; he was weak, and subject to influence, &c.and others testified, on the contrary, that he had good common sense, and always knew what he was about. The Court will not pretend to review the evidence, but, in the. course of the investigation, prefers to adopt certain leading and admitted *facts,*and the statements of some of the *defendant's*witnesses, in *460relation to the capacity of Henry Parris. The Court can perceive no proof of what is properly unsoundness of mind. He had arrived at an age very rarely reached by any of his fellow-creatures. He had long passed the period when *“*the strength of man is but labor and sorrow.” The defendant’s highly respectable witness, *George F. Townes,*Esq., who had known him from his (witness’) infancy, says, in his cross-examination, that “ Parris was 95 years of age when he died, in 1847. He never was a smart man, his mind always was weak.” Another of the defendant’s witnesses speaks of Henry Parris, in April, 1843, as being “very old and *passive.1”*Without the testimony of witnesses, this would probably be the condition both of his mind and will, at this advanced age. He was precisely in the condition to be much under the influence of those about him, and such is the general current of the testimony. His age and his infirmities demanded the attention of his friends, that he should not act unadvisedly. According to some of the evidence, one of the purposes of the defendant in going to live with him, was to prevent him from squandering his property, and particularly to prevent further bargains of slaves to P. Cauble, who appears to have had influence with him.

|%There was no want of care or precaution in the *-preparation*of the deed. Not only is the pecuniary consideration recited *with*minute particularity,but that it was “money laid out and expended in and about.the management of my business, the justice of which account has been acknowledged by me.” (The answer says it was money loaned to Henry Parris, in 1841, for which he held his note for money lent.) The negroes constituted a large portion of those in the donor’s possession. But besides this, the deed made an absolute and immediate transfer of “ the cattle, horses, hogs, and sheep, that were at that time upon the plantation,” where the donor resided. It was not a testamentary disposition, nor a *donatio causa mortis,*but an absolute bargain and sale, accompanied with a warranty. If it was intended, that the donor should at once be deprived of the use of the cattle, horses, hogs, and sheep, which were so indispensable for his support, *461(not to include the slaves,) it would in itself be such an act of improvidence, as would strongly imply mental imbecility, or undue influence, or both. But, if Henry Farris tas still to remain. in the possession and enjoyment of the property, why did not this act of *“*generous munificence,” as it is termed by the defendant, constitute a clause of the *will*executed at the same time ? Without pursuing this inquiry, it seems hardly necessary to remark, that a party, situated as the defendant was, and claiming the benefit of this instrument, should show that its provisions were well understood, its effects well considered, and that the act done was the result of his own unbiased will. It is first proper to scan carefully, the circumstances accompanying the execution of the instrument. The law, for wise purposes, has required that in some dispositions of property, witnesses should be called to attest the transaction. This is important for both parties. To testamentary dispositions, a large number of witnesses is required — and one of the prominent reasons is, to throw a guard around those who are likely to require protection — to secure from imposition those whose situation may render them most obnoxious to its influence. Dr. *William P. Turpin*is the attesting witness to the deed of 28th April, 1843. He had never known Henry Parris until one week previous, when he was called to see him professionally. He had visited him on the 27th April, and told them he should not return until the 29th April. But, on the morning of the 28th, defendant called irpon him to go and see his grandfather, and he accompanied him. He says, “his acquaintance with Mr. Parris was limited ; knew nothing of the state of his mind at that time ; he was laboring under great bodily suffering from a severe sore legthat, “ at the time he witnessed the will, he also signed a paper, (as witness,) *which was represented*to be a deed for the *land*on *which Mr. Parris livedP*He says, that, *“*Joseph Powell, C. Larke, and another man, were present. Mr. Powell wrote and produced the papers —“ the defendant was not present, but was in an adjoining room.” He says, “ his (Parris’s) health was bad, and he was confined to bed — he had to be propped up to sign *462the two papers — his sufferings were so great that they rendered him physically unfit' for business ; — he was very feeble at the time spoken of.” In his reply to the defendant’s fourth interrogatory in chief he says, “ he saw Mr. Parris sign the paper referred to, but did not see him deliver the same to Mr. Cobb and he repeats that the paper, which he thus attested, was *“*represented to be a deed for the land on which Mr. Parris lived.”

*Charles Larhe*was also examined for the defendant, A. B. Cobb. He said, among other things, that *“*he was present when Henry Parris signed his will, and he subscribed his name as witness to italso “ saw him sign another paper at that time, but did not know what it was ; that he was at Parris’s house about two hours that “ there was only a minute or two between the signing of the two papers.” On his cross-examination, he says, *“*A. B. Cobb came to witness’s house that morning, and said his grandfather wanted him to go over and witness his will.” “ When the will was signed, Mr. Parris was sitting on the bed, and complained that his leg hurt him; the will was read before Parris signed it, but the other paper was *not*read ; Powell handed the paper to Parris, and he signed it. He (witness) did not hear it read, but he saw Parris have it in his hand looking at it, and long enough to have read it; there was nobody present, except Mr. Powell, Dr. Turpin, and witness. A. B. Cobb was not there.” This witness said, he was himself a German ; that he came to this country from Germany, in 1834; that he cannot read writing in English — and his acquaintance with the language seems imperfect; — he understands, (he says,) “ low English, but did not understand high English.” Both these witnesses are adduced in behalf of the defendant; — then-evidence is very instructive ; — neither of them was called in, with reference to this transaction,- Dr. Turpin was called in, that morning, professionally, and was surprised, he says, to find that for that *purpose*he was not wanted. Larke was told that Henry Parris wished him to come and witness his will; the old man is very feeble ; obliged to be propped up *in his*bed; physi- . *463cally unfit for business; the will' is read, and executed and attested. At the same time, Dr. Turpin thinks, after the will, “ this paper is handed by Mr. Powell to Henry Parristhe paper is not read, but Parris signed it. If the will was read to the testator, why should it be deemed unnecessary to read this instrument? Larke says it was not read. Dr. Turpin proves not only that it was not read, but he proves much more. He is the defendant’s witness ; — he is the attesting witness. He says that the defendant requested him to sign as a witness, and then retired into an adjoining room. Mr. Powell had prepared, and he produced the papers ; — one, the witness understood to be a *will;*— this *paper was represented to be a deed*for the land on which Mr. Parris lived. Thus represented, it was handed to Mr. Parris, and executed by him, and attested by the witness, but he saw no delivery of the deed to the defendant. Dr. Turpin is evidently an intelligent witness, and his statement on this subject is positive, distinct, and twice repeated, in reply to the defendant’s inquiry. By whom was this representation made ? Not by Larke certainly; perhaps not by the defendant, Cobb. The only persons, then, by whom the representation could have been made in the presence of Dr. Turpin, were either Joseph Powell, or Henry Parris himself, or both. The Court has in vain sought for any explanation, any evidence which would repel the inference, or rather impair the force of the positive statement, that this instrument, containing the acknowledgment of an indebtedness of $489.98, and a gift of six slaves, with cattle, horses, hogs, &c., was misrepresented by the draughtsman, who handed it for signature to the party, to be *“*a deed for the land on which he lived — that it was so represented in the presence of the attesting witness. It is possible that Dr. Turpin is mistaken in his evidence, or that the defendant himself had no part in this misrepresentation, and is incapable of it. But.any such arbitrary speculation on the part of the Court derives no confirmation from other sources, and is painfully chilled by the *testimony*of *William*Choice, a witness adduced by defendant, and who was cross-examined by the complainants. Among *464other matters, he testified that Henry Parris was weak minded, failing, and easily influenced, in the latter years of his life, by his friends. He never considered Mr. Parris competent to attend to complicated transactions. At the time mentioned, he considered him to be easily imposed upon by those who had his confidence. “ He regarded the defendant as the general agent for Parris, — he claimed to be so.” Witness “ understood, both from A. B. Cobb and Henry Parris, that Cobb was the general agent of Parris.” Witness instituted a suit in the name of Par-ris, against Roily Jenkins, the whole of which was commenced and conducted by A. B. Cobb, without any communication between witness and Parris. But the transaction, to which this witness particularly testifies, took place *“*before he heard of Parris’s will, which was drawn by Mr. Powell, who became the counsel of Mr. Cobb ;” he cannot fix the precise date of the occurrence, but what then took place, *“*has been impressed on his mind by frequent examinations since their occurrence.” On the occasion to which he refers, he says, “ Mr. Cobb called on me, and asked me to draw an instrument of writing, conveying to himself a considerable portion of Henry Parris’s property, to be signed by Henry Parris ; and, on being told by me that, if Mr. Parris would call and tell me what kind of an instrument he wanted, and if I believed he understood its nature and character, I would draw it for him, Mr. *Cobb said,*that if I would tell Henry Parris it was right for him to do it, he, Henry Parris, would do it — if I would procure such an instrument, he, A. B. Cobb, would give me one hundred dollars. Afterwards, Mr. Henry Parris called at my office, and said, A. B. Cobb had told him to call there and sign a power of attorney, authorizing A*B. Cobb to attend to the affairs of said Parris. I told Parris it was unnecessary to give such an instrument, as Cobb was already acting as his general agent.” When asked by the defendant as to his inference, he says, that “ he has stated the facts, from which conclusions may be drawn.” After this unsuccessful experiment with the witness,..he says, “that Mr. Powell became the counsel of Mr. Cobb, and he heard of *465*the will*that he had drawnalthough there is good reason *to*believe that neither he, nor any one else, except the defendant and his counsel, was aware, until after the decease of Henry Par-ris, in 1847, that a *deed*of this character, and containing these provisions, had been executed. Except the evidence of Mr. Powell, there is no proof of delivery. It was never recorded, nor was it ever proved for record. If no fiduciary relation had existed between the defendant and Henry Parris, the Court would come to the conclusion, upon the clear preponderance of the testimony, that this transaction cannot stand; that, whether the defendant relies upon the parol gift of the slaves, or the bargain and sale of the slaves and stock, his claim must equally fail. It may be, that Henry Parris was grateful to the defendant, and intended, and was willing to have rewarded him for his services. As Lord Eldon says, in *I-Iuguenin*vs. Baseley, this is not enough. £r Was all the care and providence placed round this aged and infirm person, as against those who advised him, which, from their situation and relation with respect to him, they were bound to exert in his behalf *1”*So far from it, it is impossible to read, and to credit the testimony of Mr. Choice, without being forced fo the conclusion of the unworthy designs of the defendant; or the evidence of Dr. Turpin, without a deep conviction that those designs had been consummated.

Leaving this branch of the case, it is proposed now to advert to the purchase of the Charles Garrison tract of land. It was sold by the Sheriff in July, 1842. Henry Parris lived at this time between three and four miles from Greenville Court House, at his homestead. He was ninety years old, feeble, and so incapable of attending to his own farm, that he was obliged yearly to purchase supplies — and he was annoyed by petty debts, which he had not the means to satisfy, without a sale of property. The Garrison place was some fourteen miles from the Court House. Yet the Court is told, in the defendant’s answer, that, at the Sheriff’s sale in 1842, this land was bid off by Henry Cobb, (the father of the defendant,) for Henry Parris, for the sum of eleven hundred and ten dollars; that Parris *466affirmed the contract, and afterwards sold the land to the defendant. The whole transaction is complicated. But if Parris understood any thing about it, it affords the most striking evidence of his general incapacity, or of the absolute control exercised by the defendant. He was on the brink of the grave, with more land than he could possibly improve, and so embarrassed in his pecuniary affairs, that he had sometimes a constable at the door, with a magistrate’s summons. Yet, at this period of life, under these circumstances, he embarks in a new purchase of four hundred and twenty acres of land, situate ten miles off, which was sold, as the defendant says, at a fair price, and for which he, Henry Parris, was to pay eleven hundred and ten dollars, *cash. “*The money was raised,” (says the defendant,) “ by borrowing six hundred dollars from Jeremiah Cleveland, and five hundred dollars from Joseph Powell, and the ten dollars was paid by this defendant.” Mr. Choice says, “ he distinctly remembers, that, in. July, 1842, the Cobbs wanted to borrow money for the payment of the Charles Garrison land, bought at Sheriff’s sale. As far as his memory serves him, the Cobbs borrowed the money, and Mr. Parris was security.” Witness, *“*as attorney of Capt. Cleveland, took the confession of judgment, and in that way became acquainted with the transaction.” The Sheriff’s deed to Parris was *not*obtained until December, 1842. On the 19th December, 1842, Parris conveyed the premises to the defendant for the same sum, and on the next day proceedings were instituted against Garrison. Defendant went to live on the Garrison place in the beginning of 1844, and continued to reside there until December, 1847, when he sold the premises to William Meares, for thirteen hundred and fifty dollars. The defendant insists on the validity of the purchase for Henry Parris, at Sheriff’s .sale, and the Court is not disposed to disturb it, nor do the complainants ask it. But the Court is of opinion, that, in the condition which the defendant occupied in December, 1842, and under the circumstances which have been developed, the transfer of the 19th December, 1842, ought not to be sustained, and that the *467defendant must account for the enhanced price at which he sold the premises to Meares, as well as for the rent, from the time he took possession, in 1844, until the sale to Meares, as against whom the bill must be dismissed.

It is ordered and decreed, that the defendant, A. B. Cobb, deliver up to the complainants the slaves, with their issue, specifically bequeathed to them, respectively, by the testator, Henry Parris, and that he account for their hire from the Fall of 1848, until such delivery.

It is further ordered and decreed, that the instrument, bearing date 28th April, 1843, be delivered up to be cancelled ; that the defendant account for the amount for which he sold the slaves therein mentioned, with interest from the time of their removal from this State, in 1848, and that he account for their hire from the beginning of 1844, until such removal, in 1848; that he account also for the residue of the property purporting to be transferred by said deed. It is also ordered, that it be referred to the Commissioner, to take an account of the moneys received and disbursed by the defendant, both during his agency in the life time of the testator, and as executor since his death ; and that he report thereon, preparatory to a final adjustment among the parties interested in the residuary estate of Henry Parris, deceased, as his next of kin.

It is finally ordered, that the costs of the complainants, as well as those of the defendant, William Meares, be paid by the defendant, Amaziah B. Cobb. Parties to be at liberty to apply for any other orders which may be necessary in carrying the decree into efiect.

The defendant, A. B. Cobb, appealed, and moved this Court to reverse or modify the Circuit decree, on the grounds :

1. Because the will of Henry Parris is a will of specific legacies, without a residuary clause; and therefore Cobb, as executor, is only chargeable, in this form, with the specific legacies committed to him by the will. If there are other means belonging to the estate of Parris, they can only be reached by *468taking administration on the estate; and that not having been done, Cobb is not liable to account to the plaintiff in this form.

2. Because A. B. Cobb was the special, and not the general agent of Parris, especially after their separation in January, 1844; and, as such, the statute of limitations ought to protect him against the several matters mentioned in the bill.

3. Because, even if he had been the general agent of Parris, which he never was, the statute ought to protect him, as *to conveyances of property made to him by*Parris, after the lapse of four years from such conveyances.

4. Because the deed of April 28, 1843, having been executed at the same time that Parris executed his will, and the will having been established before every tribunal in which the appellants were entitled to be heard, in the face of the same objections here urged against the deed, the Circuit decree ought to have established the deed. .

5. Because, independent of the adjudication in favor of the will, the evidence is sufficient to establish the deed.

6. Because the Circuit decree ought to have sustained both the purchase and sale by Parris of the Garrison place, as the two conveyances were executed within seven days of each other, or ought to have set both aside ; and therefore the Chancellor erred in declaring the purchase by Parris valid, and the sale by him invalid, and in requiring A. B. Cobb to account for the rents, and for the excess for which he sold the place to Meares.

7. Because, if the deed to A. B. Cobb, of 28th April, 1843, cannot stand, he is entitled to payment for his services, in the years 1841, 1842 and 1843, as overseer for Parris ; and, therefore, the Chancellor erred in setting aside the deed, without allowing Cobb payment for said services.

8. Because the demand of $184 50, in the hands of A. B. Cobb, as administrator of Henry Cobb, was money paid by Henry Cobb, on 12th October, 1847, for Parris, as clearly shown by the evidence, and is a valid, subsisting demand, due to the estate of Henry Cobb by the estate of Henry Parris ; and there. *469fore the Chancellor erred in his decree, in not making the said • demand a charge on the estate of Parris.

Vandiver, for appellant.

*Perry,*contra.

The opinion of the Court was delivered by

DunkiN, Ch.

The defendant’s first ground of appeal has certainly no foundation. But it is due to the zeal and earnestness with which it was insisted upon by both the counsel of the appellant, that it should be more fully explained. It is said this is a will of specific legacies, without any residuary clause, and that the defendant, the executor, is either not accountable at all, beyond the payment of debts and legacies, or that, if so accountable, the surplus (in the language of the appeal) *“*can only be reached by taking administration on the estate of Henry Parris, deceased.”

It is stated in the decree, that when the testator made his will, he had three sons and four daughters. One of his sons had since died. All the daughters, the two surviving sons, and the representatives of the deceased son, were parties, either as complainants or defendants. It is not suggested that there were any other distributees, nor is it a ground of appeal, that all the distributees are not before the Court. Then, whence the necessity, or propriety, of an administration ? By law, the title of all the testator’s personalty, whether disposed of by his will or not, is vested in the executor. It is true, that in England, the surplus, after payment of debts and legacies, was held, at law, to belong to the executor; but even there, this general rule of law was controlled in Equity, in all cases where a necessary implication or strong presumption appeared, that the testator meant only to give the *office*of executor, and not the beneficial interest in the residue. In all such cases, the executor has been considered a trustee for the next of kin of the testator. And now, by the statutes of 11 Geo. IY. and 1 Wm. IY., Courts of Equity are required always to consider executors as trustees for the persons who would be entitled to distribution, in respect of *470any residue not disposed of by the will. 2 Wms. Exors. 1050. But in South-Carolina executors have been always so regarded. As executors, they have no interest beyond the commissions allowed by law, and for any surplus of their testator’s estate they are accountable as trustees, to the next of kin. In nearly every volume of our Reports, cases may be found in which this liability of the executor is familiarly recognized, such as *Hintson*vs. Pickett, 1 Hill Ch. 35; *Broughton*vs. Telfer, 3 Rich. Eq. 431, &c.; although it may be true that no direct decision upon the subject may be found, because no such question has been made.

Then it is contended that the defendant is protected by the statute of limitations, and that, particularly after January, 1844, he was only the special agent of the testator. But the testimony is very full, both from his own acts and declarations, as well as the declarations of the testator, that the defendant was his general agent. One of the demands on which he insists, is for a note which he signed, in the name of the testator, and as his agent, subsequent to January, 1844, and which he alleges was paid by the surety, Henry Cobb. It is well settled, that in such cases, the statute does not commence to run until the termination of the agency. *Hopkins*vs. Hopkins, 4 Strob. Eq. 207. And, even if the general agency ceased, a s contended, in January, 1844, the bar had not attached in September, 1847, when the defendant became executor.

The defendant having refused to deliver the two slaves specifically bequeathed to the complainants, (the son and granddaughter of testator,) on account of the insufficiency of the estate to pay the debts, this bill was filed, alleging, among other things, that the defendant, soon after testator’s decease, had carried off to the West and sold certain of testator’s slaves, and the bill prayed not only a. specific delivery of the slaves bequeathed, and an account of their hire, but that the defendant might account for his actings and doings as executor, and also for what he had received and disposed of during the testator’s imbecility. The answer admits the removal and sale of the *471negroes, in 1848, for $3,050; but insists that they had become the property of the defendant by the deed of April, 1843. The infirmity of that deed has been adjudged, for the reasons stated in the decree, and which need not be repeated. And as no adverse possession of the property included therein is suggested to. have existed, until the defendant’s removal in January, 1844, the bar of the statute (if applicable under such circumstances) was not completed at the testator’s death.

It is argued that the conclusions of the Chancellor upon the facts are at variance with the verdict of the jury, in relation to the will. This is an entire misapprehension. The Chancellor was of opinion, and so stated, that the testimony did not establish incapacity to make a will, but only such condition, both of mind and body, as would render the testator peculiarly subject to be influenced, and, it might be, misled, by those in his confidence, and that the defendant stood in that relation, and, in the matter of the deed, had abused the confidence. But, under the *will,*the defendant took no part of the testator’s estate, and, besides, it was proved that the will was read aloud, in the presence of the attesting witnesses. Under the *deed,*the defendant took a large part of the testator’s estate. It was executed at the same time with the will, but it was not read to the testator, and, according to the testimony of the only attesting witness, it was represented to be a deed of the land on which he lived. Further, on the trial of the will, Mr. Choice gave the same evidence as on this occasion. In the report of the presiding Judge to the Court of Appeals, adverting to this evidence, he says he “ charged the jury that even *the offer*of a *fee,*or a *bribe,*to a lawyer, to induce him to persuade the testator to make a will in favor of the *executor*— and *there was no further proof that such base intention was carried*out— was not, of itself, conclusive evidence of either fraud or undue influence.” But what would have been the ruling of that pure and enlightened magistrate, if such unworthy intention had been too successfully carried *into effect 1 or if a*party, who was proved to have unsuccessfully tampered with the integrity of *472one of those who should be ministers at the altar of justice, had afterwards sought to defend his pretensions under an instrument of precisely the same character as that which he had attempted to procure *1*As already intimated, it does not appear that, at the trial of the will, the parties knew anything about the existence of this deed. It had not been read in the hearing of the by-standers. It was never put on record ; and, for all that appeared on that trial, the defendant had very little personal interest in the transactions that took place at the bedside of Henry Parris, on the 28th April, 1843. Subsequent developments have given more marked significancy to his conduct. It *may be*that witnesses are mistaken — or worse. It *may be*that appearances are delusive. But Courts of Justice are bound to form conclusions from the evidence before them. They must deal with the materials presented to them, and are not permitted to indulge in speculations. According to the evidence submitted, and the approved principles of this Court, as applicable to'the relations of these parties, the. judgment of the Circuit Court should be sustained. It is so ordered and decreed, and the appeal dismissed.

JohnstoN, DargaN and Wardlaw, CC., concurred.

*Decree affirmed.*