Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-02-26
SUPREME COURT DECISIONS.
Nashville, December Term, 1867
Thomas III. COldweII, Attorney
General and Reporter.

n Fc&rce CT. ais.
The bill in this cause was fled in the yea
l64S for construction of the will and set.
Element of the estate of Joshua Pearce, who
died in 1847.
By his viii the testator specifically dis
poses OF all his real and personal estate foI
the benefit of his widow and of his children
and grandchildren, but does not expressly
designate any fund for the payment Of
debts and expenses:
BY the second, third, fourth and fifth
ksins of his will he gives pecuniary legacies
10 certain children and grand children.
The seventh item is as follows
my further will and desire is that all my
personal property, Of every description, be
sold to the highest bidder on a credit Of
twelve months to enable my executor here
matter named TO pay the above
mentioned legacies, all my slaves
over twenty-five years of age TO be inclu-
ded in the said sale, but none of my slaves
under twenty-five years of age to be in
cluded in this sale, and after paying the
above mentioned legacies, the balance, if
any, to be equally divided between my
wife, Milley A. Pearce, and the children of
my son, JoshuaA. Pearce, deceased, that is
to say" etc
In the eighth item of his will, the tesla
tor gives to Matthew johnson and James
McCutohen, the executors named in the
will, all his negroes under the age of TWEEN
ty-ive years, upon the special trust that
they should, after his decease, proceed to
hire out the said negroes, from year TO
year, till the year 1S53-that on the first
day of January, 1854, application should
be made to those negroes TO know whether
they were willing to go to Liberia; and
all that should report themselves willing 20
go should be free upon that day, and those
who should refuse to go should be sold.
Certain Of the negroes named were
to have the proceeds of their hire for
certain Length of time previous to their
emancipation twenty dollars for each ne
gro going to Africa were to be paid to the
American Colonization Society, provided
that society would undertake to transport
the negroes to Africa, and the remainder
Of the fund arising from the sale or hire Of
the negroes to be divided between the
widow and his children and grand children.
The persons named as executors and trus-
tees refused to serve in either capacity, and
the complainant was appointed administra-
tor with the bill annexed.
The widow Milley A. Pcarce dissented
from the will.
The present bill alleges the above facts;
that dover has been assigned 10 the widow
out Of what lands does not appear, and that
she claims her share of the personal estate;
that the administrator has sold the personal
property except the slaves for the sum Of
S76.S0, and that the debts of the es-
tate amounted TO S1,15S, besides
interest. 1t Is further alleged that
three Of the testator's negroes were
at his death above the age Of twenty
five years, and that they were old and of
little value, that the negroes are still IN
sold, and that no FIND is provided by the
will for the payment Of debts and no power
given to sell any property except the perish
eble property and the negroes over twenty
five years of age, the proceeds Of which
sales are appropriated to purposes other
than the payment of debts, and are INSULT
cient TO satisfy the pecuniary legacies
given.
The bill makes the widow and the sever
al legatees, but not the negroes, parties de-
fendant; and plays for a construction Of
the Will, the appointment Of trustees in
place of Johnson and McCutchen, that a
fund be created for the payment of debts,
legacies, and expenses, that the interests Of
the widow, legatees and slaves be protected,
and for general relief.
The bill was taken as confessed by the
defendants. No trustees were ever ap-
pointed in the place of those named in the
will.
The three negroes over the age Of
twenty-five years were sold by the Clerk
and Master by the order of the Chancery
Court and the proceeds OF the sale, with
the hire of the same negroes previous to
their sale, and the proceeds Of other per-
sonal property sold by the administrator
amounted to the sum of SS9S.65.
The proceeds of the sale Of these ne
grocs, and Of this personal property,
were, by the seventh item of this will,
directed TO be distributed among certain
legatces, but this whole fund was used in
the payment of debts and expenses of the
estate, there being no other property so
far as appears in this record, except tie
cmaDcipated negroes and real estate.
At the December term, 1852, the Clerk
and Master made a report in pursuance
of a previous order, showing that the adj
ministratOr was chargable with the above
sum of SS9S.75, and with the further
sum of $536.12, the proceeds of the
hire of the negroes, who were directed
to be GmancipatCd, making a total coming
to his hands of s1,43477, and that he
had expended on behalf of the estate in
payment of debts, amount allowed to the
widow, and expenses, the sum OF Sl,7l5.
IS, showing that the estate was indebted
to the administrator the sum of $3.50. 81.
Upon this report the court decreed that
it appearing tl'at the entire real estate of
the testatOr was devised by ms will; that
the slaves directed to be emancipated
being the previous fund for the payment
of debts, are to be exhausted before the
real estate can be reached for that purpose:
that the said slaves should be hired out by
the administrator until the proceeds of
their hire should be sufficient to pay all
the liabilities Of the estate and the dis
tributive share Of the widow, and that the
widow was entitled 20 succeed to the per
: sonal estate of her deceased husband in
the same manner Us if he had died in
testate.
The negroes being Intercepted by order
of the court, expressed their desire to 90
TO Liberia.
The total hire of the emancipated ne
groes up to the first day of January 1854,
was ,024 So, of which portion was be-
queathed to other legatees.
After this the slaves were hired out for
successive years by the administrator. I'M
der the orders of the Court, till the Octo-
Der term, 1850, when the Clerk and Mas
ter reported that all the debt and liabili-
tiles Of the estate except the costs of the
cause had been paid, and showing a large
balance in the hands of the administrator.
The report was confirmed, and a decree
made directing that it appeared that the
balance IN the hands of the administrator
was not sufficient to send the negroes to
Liberia, and directing the administrator to
hire them out for the year 1861. The ne
groes were accordingly hired out for the
year 1861, but do not appear to have been
so hired after that time.
The total amount of the hire of the
emancipated negroes received by and
charged TO the administrator was S4,2II 81.
lie expended in the payment of debts
the dlstnbutive share of the widow. and
expenses Of administration. the fund of
SS9o.65 first realized as above stated.
$1,02AS3 earned by the emancipated ne.
groes previous to January l, 1854. and the
further sum of S1,O2l. &c out of the hire of
the emancipated negroes accrUinr after
that date, making the entire amount #
debts and expenses s., 945.14
BY final settlement with the admiuis-
traitor reported by the Clerk and Master to
the April term, 1867. il appeared that the
amount Of the fund arising from the hire
of these negroes on hand at that time was