Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-06-30

to this court by writ 81 error, ana the
question is made, to what extent can this
court afford relief infsEor of persons
under disability, agains. d decree which is
made by the consent ofthe next friend OF
the incompetent party2 -
Il is the duty of the Court of Chancery
to protect the interests of parties under
disability, and to supervise and control
the action of next frieids and guardians
ad Item; and 1t viii notsuffer any agree
ment or consent Of these representatives
to prejudice the rights of the wards of the
court. Where such parths are concerned,
the court will not generally make q de-
cree by consent without a reference to
ascertain whether it will ht for their bene-
fit. A decree thus made is not for that
reason void, and if found to be beneficial
TO the incompetent partY will not be re-
versed, merely because made without
reference. l Dan Oh. Pr. 8, Am. Ell
70, 1913, 165.
But this court win look narrowly into
such DEGREES, and If they arc found to be
prejudicial to the interests of the parties
represented by the next friend or
guardian ad Item, will reverse or modify
them, and will make such DEGREES IN the
case as are necessary to the protection OF
such parties.
The next friend of the negloes, by the
agreement in this case, ,waivef all claim
against the executors far tht profit OF
speculstions, which it was charged in the
cross-biIl they had made Ylsh the trust
fund, and consented to "a ucree against
them for a limited ayfnouH Of interest
upon the fund in theif hand. The maxi
ing of such speculsxtions via the fund Is
positively deniead in the answer OF the ex-
ecutors, and (as 1t appears thu the court,
az well as the next friend, wlo scans to
have beesh in good faith endavoring 10
protect the negroes, was satisfied thai the
agreement was beneficial to ae negroes
Sand that nothing further could Se realized
by pursuing litigation as to tha matter,
we will not, in the absence ofanything
to shew that such profits or spGulations
had been made by the executors disturb
the decree in that respect
Other questions in the case depend up
on the construction to be given 10 cerlain
clauses in the will of Samuel Winsead.
By the first clause of the viii, the
burial expenses and debts of the testator
were directed TO be paid as SION as posi-
BILE, but no fund was expressly indicated
for these purposes.
By the second clause, there was appro-
priated to the widow during her lie, 10
dispose of as she might need for the use
of the family, all the property of the tes-
tator, including any money on hand, ex-
ccpting the lands directed to be sold FOR
the benefit of the neg-nes. and excepting
also, as directed In the codicil, the money
and debts due the testat0E.
II appears from the pleadings in the
case that portion of the tessator's estate
consisted of money deposited by him in
the Planters Bank.
These deposits, though in certain
sense moneys educ" the teststor, must be
considered as more appropriately desig-
mated in this will by the term "mOney on
hand" and would therefore go in the first
instance to the widow, under the general
bequest to her for life for the
use of his family. See LIST Roper
on Leg. 2S2-3. 2 Redfield on Wills Oh. IS
s49 pp. 431. 49S. AL. I'd WINS on
Ex'rs !, 070-2. The contest may in various
cases indicate a construction more or less
extended to be given to the expression
'finoney on hand, !" but the teststor in the
present instance must have employed it
as including the balance at his bankers.
The fund set apart for the benefit of
the negroes consisted of the proceeds of
Al. Is-oaEaI 20 no colA fNr hot
pose, and the debts collected. And if
the money deposited in the bank by the
testator was not used IN the payment of
debts and expenses, or disposed of by the
widow during her life, as permitted in
the second clause of the will, any portion
of it which remained at her death would
also 60 into the fund of the negroes IN
der the designation of "any remaining
money of my estate that is not otherwise
disposed of.
In the decree of the Chancellor the ex-
eeutors are credited with debts paid and
expenses of administration to the amount
of more than thirteen thousand dollars,
and it would seem that a large portion
of this amount must have been paid
from the fund belonging to the negroes.
1t is necessary, therefore, to inquire upon
what fund of the estate these expenditures
are properly chargeable.
The testator directed his debts and
burial expenses to be paid as soon as pos
sible, and evidently supposed that his
estate would possess fund Immediately
available for that purpose.
In the total absence of directions in
the will, the compensation of executors,
and other expenses of administration,
would be chargeahie upon the same funds
as debts and funeral expenses; and that
would be upon general and residuary leg
acies in the first instance, IN exonerstion
of specific or demonstrative legacies.
The bequest to the negroes of the pro-
ceeds of the land, and of debts due the
testator, was not chargeable in the first
instance with the payment of debts or ex-
penses. Neither were these chargeable
in the first instance upon the homestead.
the turnpike stock, the furniture, and the
rents and profits of the land and
negroes, these being specifically de-
vised and bequssthed to the widow
by the fourth clause of the viii
nor upon the fsur tracts OF land directed
By the fifth clause to be sold after the
death of the widow for the benefit of the
ncphews and nieces of the testator.
But the disposition which is made by
the second clause Of all of the testator's
property, except that set apart for the
negroes, is general and residuary in its
character, and whatever property of the
testator was disposed of by this clause,
and not specifically given in the subse-
quent clauses, constituted the proper
fund for the payment of debts, expenses
of administration and general legacies.
This included the money actually in
the testator's hands at his decease and
that then on deposit for him in the
Planters Bank, and may have included
other property belonging to the teststor,
though there is nothing in this record
to show that he had any property except
that expressly mentioned in the will.
The duty of the executors was to pay
the debts and expenses of the administrs-
ton out of the money on hand and on
deposit at the teststor's death, and out of
the proceeds of any other property not
specifically disposed of, if such there was;
| and they had no right to Dsv these debts