[Present, Chancellors Rutledge and Marshall.]

#### Andrew Kerr and wife, Administratrix of Elizabeth Hill, and Guardian of Henry D. Hill, *vs.*Charles P. Butler, Surviving Executor of Duncan Hill.

An executrix not allowed credit in her accounts for payments made *by her,*merely on the verbal request of the testator on his death bed; no measures having been taken to reduce the request to writing as a *nuncupative*will.

A testator giving the pi’ofits of his whole estate to his wife for life, and to his sou afterwards, the wife is bound to maintain the son in minority, and till her death; and she cannot charge the son with board and maintenance.

THE complainants set forth in their bill, that the said Elizabeth Hill, formerly Elizabeth Butler, was possessed of a considerable real and personal estate, and contemplating a marriage between herself and Duncan Hill, did, on or about the 3d December, 1785, by indenture tripartite, the said Duncan Hill consenting thereto, and joining therein, for the considerations therein mentioned, settle, convey, and assure all her estate to Angus M’Cleod and James Hamilton^ in trust for the sole and separate use of *280the said Elizabeth Butler. That the said intended marriage took effect, and the said Elizabeth Hill, out of the profits and increase of her said separate estate, loaned to the said Duncan Hill for the necessary expenses of his trade, and for other purposes, the sum of 326/. 15s. as appears by exhibit A. filed with the bill. That the said Duncan Hill being also seized of a considerable property, did make and execute his last will and testament, bearing date the 5th December, *1797,*and by the same, he bequeathed all the residue and remainder of his estate, after payment of a few legacies, to his wife Elizabeth Hill, for the term of her natural life, and after her death, to his son Henry D. Hill; and in case of the death of the said Henry D. Hill, before he attained the age of 21 years, the testator directed that the whole of his estate should be divided in five equal portions among- certain legatees *;*and of this will, appointed James Hamilton and Charles P. Butler executors, and shortly thereafter departed this life, leaving the same in full force. That shortly after the death of the said Duncan Hill, his widow took possession of his estate, and finding it would be impossible for her to pay the debts due by the said Duncan Hill, and support his son Henry D. Hill out of the profits of his estate, and knowing it would be more beneficial for those interested in *the*said estate, that the same should be kept together, the said Elizabeth Hill, out of the profits and income of her separate estate, paid the sum of /. agreeably to exhibit C. filed with the bill, whereby the said Elizabeth Hill, by her payments to the several creditors of the said Duncan Hill, and other disbursements out of her separate estate, became entitled to the samelien on the property of the said Duncan Hill, as the creditors had thereon. That the said Elizabeth Hill departed' this life, having first made and executed her last will and testament, and by the same appointed Thomas Bass and the said Charles P. Butler executors thereof, who refused to qualify upon the same, or to take upon themselves the burthen of the execution thereof j whereupon the complainant Margaret Kerr ap*281plied to Charles Lining, Esq. ordinary for Charleston district, and obtained letters of administration, with the will of the said Elizabeth Hill annexed. That shortly after the death of the said Elizabeth Hill, the said Charles P» Butler qualified upon the will of the said Duncan Hill, and by virtue thereof possessed himself of all the estate of the said Duncan Hill left by him at the time of his death, and hath received the rents of houses, and the earnings and .gains of the negro slaves, and of the monies due, and owing to the said Duncan Hill. That about the 11th May, 1804', said Henry D. Hill applied to this honorable court *by*petition therein, praying letters of guardianship of his person and estate might be granted to the complainant Margaret Kerr, and duly obtained an order for the same. That the complainants - frequently applied to the said Charles P. Butler, and requested him to come to a fair andjusT account and settlement, &to pay to the complainant Margaret Kerr, as administratrix aforesaid, the sum 'so advanced by the said Elizabeth Hill in her lifetime to the said Duncan Hill in his life time; and also the aforesaid sum paid by the said Elizabeth Kill after his death, for the boarding, educating and clothing of the Said Henry D. Hill; and for the payment of the debts due by the said Duncan Hill at the time of his death, with interest on those sums respectively. That the said Charles P. Butler hath refused to come to an account and settlement; but withholds from the complainants a large proportion of the said estate, on the pretence, that he cannot as the executor of the said Duncan Hill, deliver over the estate and property, or pay the rents, issues and profits of the said estate without the sanction of this honorable court; more especially ás he is uncertain whether the vouchers offered in support of the said demands are legally sufficient, & therefore he refuses to pay the same. The bill prays relief.

*280OCTOBER, 1804.

*281To this- bill the defendant put in an answer. The defendant, in his answer, admitted that the said Elizabeth Hill being possessed of a considerable real es*282tate, intermarried with Duncan Hill, having previously made and executed such marriage settlement as in bill of complaint set forth. The defendant neither admits or denies that the said Elizabeth Hill did from the increase and profits of her separate estate, loan and advance to her husband said D. Hill, as stated in complainants exhibit, filed with the bill marked A; but if the same should be proved to have been actually advanced, the defendant submits to this honorable court, whether such advances are chargeable and demandable against the estate of the said D. Hill, more especially as the defendant presumes she lived with, and was supported by him, and the same was never by her demanded in her life time; and whether if the said estate had been chargeable therewith, such chargfc was not deemed satisfied by his leaving her all his estate during her life. • The defendant admits that Duncan Hill was seized and possessed of a considerable real and personal estate, and did make the bequests as in bill mentioned ; and that he, the defendant, with James Hamilton, and said Elizabeth Hill, were named executors and executrix thereof; and that said D. Hill about the time in bill mentioned, departed this life without revoking his said will. Defendant admits that Elizabeth Hill took possession of the estate and property left by said D. Hill, at the time of his death. Defendant can neither admit or deny, it not' being within his knowledge, and therefore requires proof, that the said E. Hill, finding it impossible for her to pay the debts, and support his infant son out of the profits and income of the testators estate, and she supposing it would be more beneficial for those interested in said estate, that the same should be kept together, paid from the profits of her own estate, the sums stated in the exhibit filed with the complainants bill marked C. The defendant submits to the court that if it shall appear that the said E. Hill supported the said minor Henry D. Hill, in the manner and to the amount stated, whether it ought not to be deemed to be done by her gratuitously, as his father the testator had left to her all his estate duringherlife, as the said son *283fiad no estate or means whereby he could support himself. The defendant also says he cannot admit that the said E. Hill paid the debts aforesaid of the said D. Hill out of her separate estate, but that the said debts were paid partly by cash of the said D. Hill, found in the house at his decease, and partly by a debt due said D. Hill from J. Hamilton, & the amount of the debts so paid hath been since overpaid by the defendant to the complainants, they not knowing of, & omitting some credits contained in the said exhibit, which ought to have been given to the estate; and the said Elizabeth Hill having unadvisedly paid more than was due on account of the legacies left by the said D. Hill. Defendant admits that E. Hill died about the time in bill mentioned, having first made and executed her will and ■testament, and by the same, appointed the defendant and Thomas Bass executors, who refused to qualify, and that the complainant Margaret Kerr, in consequence thereof, took administration, with the will of the said E. Hill annexed. Defendant admits that shortly after the death of the said Elizabeth Hill, he qualified upon the will of the said D. Hill, and paid on account of the said estate, the sum mentioned in an exhibit filed with the answer. The defendant admits that H. D. Hill applied to this court by petition, therein praying that letters of guardianship of his person and estate might be granted to the complainant Margaret Kerr, and obtained an order for that purpose.— He admits that he delivered over to the complainant Margaret Kerr such part of the estate of the said D. Hill as is set forth in the exhibit filed with the bill, and refused to deliver over the residue, conceiving himself not legally-authorized to do so, having qualified and taken upon himself the burthen of the execution of the will of the said D. Hill, more especially as in case of the death of the said H. D. Hill before 21 years of age, the estate is limited over to certain persons in the said will mentioned : but the defendant is willing that the court should direct the whole or any part thereof to be paid to the complainants for the support and education of the said H. D. Hill. He *284denies all unlawful combination, and prays to be dismissed with his costs and charges.

.-Chancellor MaRshauu

afterwards delivered the de-*e*..n cree ot the court.

. . # In considering the points of this case submitted to the court by the report of the master, the first is that of three. several sums of money paid by Elizabeth Hill at the request of her husband on his death bed, after the making of his will: although it has been clearly proved such request was made by the testator, and the monies accordingly-paid by his executrix, yet as the payments were not authorized by the will, the court cannot allow the same in the accounts of administration. If the court were to do so, it would as to those sums be a repeal or alteration of the will, directly contrary to the act of assembly on that subject, passed in the year of our Lord, *1789;*indeed the precaution has not been taken to prove according to the directions of that act, the said request of Duncan Hill as a *nuncupative*will. The legatees under the will, when of full age may from a sense of justice reimburse the sums paid by Elizabeth Hill, but this court cannot order it. Neither will the court allow the complainants the sum of one hundred and eighty-five pounds charged for the board of Henry Duncan Hill, provided by his mother Elizabeth Hill. Trye it is, that by the will, the testator gave the whole income and profits of his estate to bis wife during her life; but the court will not suppose on the part of the testator an intention so extraordinary as leaving his infant son for a series of years without the means of maintenance or education, or that an account for these purposes was to be kept until the son came into the possession of his fortune, and then to be paid out of the capital *thereof;*but the court will rather suppose the testator intended his wife to take the profits .of his estate as well for the support of his sou, as for her own use. The several other sums of money mentioned in the report, are duly proved; it is therefore decreed that the complainant do *285x eco ver the amount thereof with interest, to be paid out of the estate of Duncan Hill, subject nevertheless to a de-diction of one thousand eighty nine dollars and , twenty-nine cents, for monies due Duncan Hill, and received by the said Elizabeth Hill from James Hamilton, but omitted to be brought into her account of administration. It is further decreed that the report of the master with the foregoing modifications be confirmed, that the defendant Charles Paxton Butler, out of the profits of the estate of Duncan Hill, do pay to the complainant Margaret Kerr for the maintenance and support of Henry Duncan Hill, the sum of one hundred and fifty pounds annually, to be computed from the time he chose her for his guardian, and that the costs of this suit be also paid out of the estate of Duncan Hill.