Opinion
05-14-1824
Bryce v. Stevenson and Others
Leigh, for the appellant. No counsel, for the appellee.
An appeal from the Fredericksburg Chancery Court.
Previous to the marriage of John Bryce and Louisa B. Care, the latter secured, by a settlement duly made, all the property of which she was possessed, to her own separate use and enjoyment during the coverture, with a power to dispose of the same, (if she should die before the said Bryce,) as she might, by her will or writing, direct. Stevenson and Walker were trustees, and parties to the said deed of settlement. The marriage took place; and Louisa Bryce afterwards died in the lifetime of her husband, leaving an infant daughter called Sarah C. B. Bryce. She bequeathed, by a nuncupative will, all her estate, (with a few exceptions,) to her daughter; but permitted her husband to remain in possession of it, during his life, without giving security. In the event of her daughter dying in the life-time of Bryce, without issue, she gave her estate to her sisters.
This will was proved in the proper Court, and Bryce was permitted to qualify as executor, under the will, without giving security.
The trustees received a part of the trust fund; and Bryce, as executor of his late wife, required them to deliver up her estate to him. But, the trustees refused to do so, without a decree of the Court of Chancery, sanctioning that proceeding. A bill was filed by Bryce to obtain such a decree, making Stevenson, Walker, and the infant daughter of Bryce, by her guardian ad litem, defendants.
The Chancellor decreed, that the defendants, Stevenson and Walker, should deliver to the plaintiff, for the use of the infant defendant, the bank stock and bonds admitted by them to be in their hands, upon the plaintiff's entering into bond, with sufficient security, in a penalty equal to double the amount of the said bank stock and bonds, with condition to account to the said infant for the same, and the profits thereof, when she shall attain the age of twenty-one years, or, if the said Bryce should die before that period, on his death to account with her qualified guardian, for the bank stock, bonds, and the profits thereof.
The plaintiff appealed.
Leigh, for the appellant.
No counsel, for the appellee.
OPINION
The President, delivered the opinion of the Court.
The Court is of opinion, that although the appellant claims the possession of the property in question, in the character of a qualified executor without security, the decree of the Chancellor, imposing terms on him, was correct; nor is it in conflict with the judgment of the Court of Probat, which could only be set aside in an appellate Court. It is the peculiar province of a Court of Chancery, to take care of the estates of infants; and, though the Court of Probat, under the influence of the will, and of the 22d section of the act reducing into one the several acts concerning wills, thought proper to admit him to qualify as executor, without security, yet the Court of Chancery, in the exercise of its peculiar jurisdiction, under the circumstances of the case, rightfully withheld its aid, unless the property of the infant was secured on the terms stated in the decree.