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

Il
legacy was general one, and payable out
of the same fund, which was chargeable
With debts and expenses. If this proved
| insufficient She fund belonging 10 the ne
| groes could not be liable to psy II or to
contribute toward it. Il does not appear
from this record from what source this
legacy was paid - R4i = 80
IL the executors have wrongfully made
payment out of this trust fund, they are
personally responsible for such misappro-
priaticn, and the negroes are also entitled
| to Ave the trust funds reimbursed, to the
extent of such wrongful appropriation,
ont Of the property primarily liable, if il
or its proceeds still exists.
If the property primarily liable was
insufficient for the payment of the dehts
and expenses, and these haEo been paid
out of the trust fund, then this fund Is
entitled to contribution from the other
legatees and devisees in proportion TO
heir respective interests. --
1T Is alleged on the part of the execu-
sors, that they made settlement with the
County Court Clerk in 1883, but the evil
dence of this settlement is not in this re-
cord, and we cannot see that it was made
upon notice, or that it is conclusive upon
any one. -Tg
The Chancellor decreed credits to the
executors to the amount of $l3, 322 81 in
gross, for debts paid add for their own
compensation, but it does not appear
what portion of these credits was for
debts and what for compensation, and we
therefore, make no decree here as to the
amount of either, and these items must
be settled hereafter.
We are satisfied from this review of
the record that the decree of the court
below did operate Improperly to charge a
considerable proportion of the debts of
the estate aud expenses of administration
upon the trust fund, and that the decree,
though by consent, was improvident in
that respect and should be set aside. But
we affirm the decree 80 far as it charges
the executors with interest upon the fund
and afIirms the compromise made by the
next friend with the executors, as to
the alleged speculations of the executors
with the fund, and the making of profits
for themselves out of it, and out of pur-
chases of the trust property. The decree
as to tie interest charged against the ex-
ecutors was clearly justified by the admis-
sions in the answer.
The cause must be remanded 10 the
Chancery Court, where the proper ae-
counts can be taken. So far as relief
| may be sought against the executors of
Samuel Winstead, and against the estate
of Mrs. Stephenson, the proper repre-
sentatives are already before the court.
And for the mere purpose of securing
payment Ii, the negroes of tue fund, to
which they are entitled and now in court
or in the hands of the executors, no fur
Their parties are necessary. But if it is
sought to recover contribution directly
from other legatees, such legatees must be
parties.
As to the compensation of $500 de-
creed to the solicitor and next friend of
the negroes by this decree, this was q
matter peculiarly proper for the consider
alton and discretion of the Chancellor.
It was settled by reference to the Clerk
and Master, and we are not disposed to
| disturb the decree in that respect.
| We cannot upon this record
decide as TO the effect of the
payment by the executors of the
bills of the Bank of Tennessee. This
payment was made upon and in pursu-
suee Of the final decree, and the Chancery
Court has made no decision or decree as
! to its effect as satisfaction, which we
can revise.
Neither can we now decide az to the
| propriety Of the several DEGREES in regard
to the compensation of the receiver, and
the last order awarding additional COM
pensation to the solicitors. After the
final decree between the negroes and the
executors, the cause was kept in court
merely for the purpose of protecting tie
| negroes BY the intervention or receiver.
But his accounts have not been settled,
and no final decree has been made as to
his compensation.
In the anomalous, half-emancipated
| condition In which, by our law, these
negroes were eft at the decease of Mrs.
| Stephenson, an in the turmoil of the late
war, the appointment of a receiver was
| probably necess ry for their protection,
ane was justifat e under the law then in
force.
The receiver entitled to reasonable
compensation, wi 2h must be fixed and
allowed out of IL earnings of the ne
groes.
BY section 2,704 # the Code, the mon
ey arising from the hire of slaves liber-
ated under the same viii and hired out
by order of the Court is joint fund for
the benefit of all who claim freedom un-
der the same will. Ii 5 doubtful if this
section applies to any case except that
! specified in the next receding section,
where it is necessary to -aise 8 fund for
the purpose of defrayin. the expense of
transportation to Africs This was
regulation of the slave c, 'e in pursuance
of the policy of the Stat but did not
confer vested fight to hese earnings
upon those whose labor die Of contribute
thereto. And when the Laws and policy
of the State were changed Tic equitable
right of those whose labor produced this
fund became superior to any claim on the
part of the others. The proceeds of the
| hire must be given to those W. earned
it.
The intention of the testator { identity
was that the fund should be diYi d per
| capita among those who should eve tually
become entitled to the benefit Of it. The
time fixed for the division was upon heir
arrival in Liberia, and their indiv lual
rights in the fund could not be
fixed or ascertained till they shC uld
arrive there, when it would belong to
those who should arrive there, as class.
Up to the period of the abolition of
slavery in this State, on the 22d of Febru-
airy, 1865, the Individual rights Of tlse ne
groes to the fund were undetermined, but
on that day, by the change in the letter
and policy of our laws, they became en-
titled to receive and enjoy the fund pro-
Yided for them, without the necessity of
going to Liberia to receive it. And at
that time the rights of each individual
then in csSe to his or her share of the
fund became perfect. The fund must be
divided upon that basis, and the represen-
tatives of such as have died since that
time will take the shares of their respec-
tive dccedents.
In April, 1866, petition was presented
on behalf of the heirs, and nextof kin, of
Samuel Winstead, charging that the ne