Opinion
12-18-1818
Machir's Executor v. Machir's Devisees
Call for the appellant. Leight for the appellee.
A bill was exhibited by James Machir executor of Alexander Machir deceased against Henry Machir and others, children, devisees and legatees of said decedent, and also a certain Conrad Wakeman; praying a settlement of the plaintiff's accounts as executor; that the devisees be compelled to convey to the defendant Wakeman a tract of land which the plaintiff had sold him with their assent; that Wakeman be decreed to pay the purchase money to the plaintiff; and for general relief.
The devisees by their answers declared themselves willing to convey the land to Wakeman, when the plaintiff should account for the purchase money, the whole of which, they believed, had been paid him. No answer was filed by Wakeman, nor any step taken to compel him to answer; and, in the settlement of the administration account, the Commissioner charged the plaintiff with the whole of the said purchase money; to which he took no exception.
Henry Machir filed a Cross-bill against the said James Machir, in which (after complaining of James's misconduct as executor, and unreasonable delay in settling his accounts, and insisting that James was indebted to him as a legatee of Alexander Machir,) he farther set forth, that, in 1798, he was employed by James in an agency concerning certain Ohio lands, and was by him promised 300 acres thereof, as compensation for his services: --that the services were rendered, but the compensation withheld: --that James had since sold a considerable part of those lands, of the best quality, and was therefore now unable to convey 300 acres, of an average value, according to his promise: --that the parties were engaged in a mercantile partnership, and referred their partnership accounts to arbitrators, who awarded that Henry should pay to James $ 2990, 31 Cents: --that James brought suit on the arbitration bond, and obtained judgment: --that the question of the 300 acres of land, and the balance due on the administration account, were matters not submitted to the arbitrators; and that the monies due the Complainant on these accounts would more than satisfy the said Judgment. He prayed a speedy settlement of the executor's accounts, a conveyance of 300 acres of land of an average value, & c.; an injunction to the judgment; and general relief.
The injunction was awarded, on the usual terms.
James Machir's answer denied all the charges against him, of misconduct and unreasonable delay; and, as to the claim for the 300 acres of Ohio land, (without denying the contract,) he denied that it was fully performed on Henry Machir's part; which performance, however, was proved by many depositions.
It appearing that, by transfers from the other devisees, Henry Machir had become entitled to the whole balance due from James upon the administration account, which by the Commissioner's Report, (as amended and confirmed,) was 301l. 14.8 1/2, with lawful interest from May 1st 1800; and Chancellor Brown being of opinion that, James Machir having most unreasonably delayed the settlement of his accounts of administration, and having failed to comply with his contract respecting the 300 acres of Ohio land, Henry Machir was well justified in resorting to equity; he therefore decreed that Henry Machir recover of James the said sum of 301l. 14.8 1/2 with interest as aforesaid, and the costs of the original and cross suits; that the Injunction be perpetuated as to the amount of such recovery, and dissolved as to the residue; that no damages be allowed on that part of the judgment, as to which the Injunction was dissolved; that James Machir convey to Henry Machir 300 acres of the Ohio land, of an average value; with liberty to Henry Machir, in default of such conveyance, to resort to the Court to compel payment of the present value thereof; for which purpose, the cross suit was continued in Court. But no provision was made for a conveyance to Conrad Wakeman, according to the prayer of the original bill; nor for a bond to secure the executor against such debts as might thereafter appear against the estate of the testator.
Note. See Act of January 20, 1804, edi. 1808, c. 29, § 4.
From this decree James Machir appealed.
Decree reversed with costs, and remanded.
Call for the appellant.
Leight for the appellee.
OPINION
By the Court.
The Decree is erroneous in not requiring a refunding bond according to law, and in not decreeing a conveyance, for the heirs of Alexander Machir, of the land sold to Conrad Wakeman.
Note. See Clay v. WilliamsMunf. 105; Stoval's ex'or. v. Woodson & WifeMunf. 303; and M'Rae's ex'or. v. Brooks & Wife, ante.
It is therefore reversed with costs, and remanded to be reformed, and the cause to be finally proceeded in, pursuant to the principles of this Decree.