Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-11-01

OFROTAL.
Opinions OF the Supreme COurs of the
zerms 1889.

OFFICIAL.
Opinions OF the Supreme Court Of the
state OF Tennessee, at jackson, April
Elrods vs.. Lancaster.
The father of compliments died in Jackson in
/ AoSs' leaving will with defendant-his executor
ana large estlte. The viii was proved and exc
euteo by the defendant The deceased had been
merchant Tor a number of wears and had succeeded
IN accomplishing estate Of fifty or si.ty tborsaud
dollars The most of his fortune consisted in money
and chooses in action and the settlement of the bps
ness was necessarily slow and troublesome There
were vast number of small debts and the ,,lt;
mate loss by lnsolveneies was very great probably
thirty or forty Thousand dollars. The testator left
wife and SIX children, all o. whom were then and
four Of them yet under age The widow married
Barr, and on the Path January, 1916, fled their bill
in the Chaneery Court against their executor and
the children all then being minors for the settle
ment Of the estate so far to obtain the part to
which they were entitled under the will. which was
one equal seventh IN the event of marriage In that
suit an account Of the estate taken and the part
OF the cOmpIainants paid over and the balance re-
tanned BY the executor in his character as guar
MAN, which he assumed at the request of the chill
dren soon after the decree After that he made his
reports and settlements guardian, in the County
Court
In 1850 certain real estate was sold upon the pe-
tton Of Lancaster, and Lyon who had then become
guardian for the oldest son. Some, and perhaps
most Of the property was bought by one or the
other of the guardians
This bill was filed Sd March, 1854 for two main
objects
]. To have general account and settlement of
the estate both as executor and guardian, charging
various specific abuses Of his trust
2 To set aside the sale of the lots in jackson and
recover them back with rent
As TO the first ground, in addition to the general
and specific denial of the charges the defendant re-
hes upon the settlement and decree in the Chsneery
suit Of 1885, as bar to the bill far as 1t seeks 10
reopen his accounts as executor. We are not pre-
pared under the circumstances to give it that effect
except as TO Barr and wife. The other complain |
ants all infants, and the object of the proceed
ing was not to assign to them their parts OF the es
tate but only to obtain the oneseventh of the COM
plainants, and leave that Of the minors where it |
was. A settlement Of the whole administration was |
only necessary for that purpose. It is true that /
decree between defendants. will be conclusive unaer |
certain circumstances. and in proper eases, where |
antagOnism exists between them, 10 make ac- /
tors against each other. But We do not regard this
such case Against all the rules of propristy /
the executor was appointed to act guardiansad /
Item for the infants, they having general guard an
at that time. Their interests and his were directly
IN conflict, and the substance of 1t was, that he
sumed to act for them against himself The fact |
that his appointment recommended in the bill |
make no difference Ii ali seems to have been |
hurried proceeding got up BY himself The bill was
filed on the oath OF January 1875 on which day he /
Item But his answer executor, sworn to on the /
23d, and the same day, prior to the filing of the
bill and before his appointment his guard
ian referring TO and admitting TO be correct his an
swer as executor was drawn up and sworn to. All
this BY the same solicitor Great confidence existed
between the parties, and II may be that no wrong
intended. But we cannot permit decree made |
under such circumstances to compromit the rights
of the infants.
That il not therefore in the way of the relief now
sought. 1t may be further observed that this de-
fence is not set up in the with that precision
and particularly which seems to be required by /
the rules Of equity pleading on this subject. But /
whether that objection alone would prevail under /
the present relaxation Of the rules Of pleading we
reed not say, consider the other grounds suf-
cient.
Much proof has been to show that independently |
of the settlement in the chancery suit but upon the |
merits there is grounds for the account demand
ed in the bill That is a matter to be determined 4
BY reference to the master We think the principle
settled, and since acted upon in the of /
Tumey VS. Williams, Yer 2lz, must govern this, /
The construction given in that case and the case
Burton VS.. Dickerson, 3 Yer. H. the act of 1922,
CHI 81 think correct the settlements made BY the
proper authorities, Ieere aHts die concerned, are
in the nature OF settled or stated accounts,
to require surcharging and classifying before they
can be opened, but only praG tdee correct and may
be opened for general account They are, hOweV-
er prima facie evidence for the executor in taking |
the general account, but nothing more.
We are Of the opinion that the part Of the Chan
ceOrs decree ordering general account Of the adj
ministrator is right, and affirm it TO that extent
But on the second question we think be erred in |
setting aside the sale Of the lots in Jackson. There
are but two objections male 20 it.
J. That the petition is L the name of the guardi-
an and not the minors 1t is in these words
Your petitioner, Samuel Lancaster, guardian
for Samuel James. Mary Eliza and Sarah Jane e.
rod and James s Lyons guardian for Austin Elrod,
minor heirs of James Elrod, deceased, &C."
sale, in the petition signed by Attorney. The re-
ference proof reports and DEGREES in strict con-
fOrmity TO the requirements of decisions, The
heirs were then all under age, but two Of them at
ter arrival of age by petition and order of the |
Court fully recognized this proceeding and took ben
etts under it. We think there Is nothing in the oh
lection to avoid the sale, and simply refer to the re-
cent of Winchester declared at the last term at
Nashville, and to be reported in Sneed, for the /
principles which govern it.
There is nothing in the second objection as held |
by the Court in the case of Blackmore Shelby, /
Hum 439. The Court there says that in sales made /
by Court OF competent jurisdiction 1.-The guardian
may purchase, and although his conduct will be /
watched with jealousy yet if 1t be manifest that he
acted fairly, with the utmost good faith, and the /
transaction 10 free from any imputauQn of design /
on his part to gain benefit Tor himself, TO the pre-
udice of the interests of his wards such purchase
will be held valid" In this there is every evil
denGe of fairness and good faith. After the report
of the sale, reference was made and proof taken /
upon it, and the Court held it was fair, the price
full, and promotive of the interests of the heirs
So much of this decree as annus the sale of the /
lots will be- therefore, reversed and that ordering
a general account affirmed.
The case viii be remanded for taking the account, /
according 70 the rules of law and the principles /
stated in the decree both as to the execgto=shp and
guardianship Barr and wife viii only be entitled /
to an account for matters since the decree of IS45
CARUTHERs.
Test: " D. WEIGH Clerk