Webb v. Bellinger

The court took time to* consider, añd afterwards Chancellor J AMES delivered the decree of the court:

. Complainants in their original bill, which has been revived in the usual form, have called upon Edmund Beilin-ger,; deceased, as one of the executors of Benjamin Webb, deceased, the father of complainants, for an account of all his transactions with the said estate, for an account of the profits of the real and personal estate, and for all the property contained in the inventory returned by the executor to the ordinary’s office. Defendant, in his answer, has accounted for the crops which he made from the year *496when he first took upon himself the management oí' the estate as a qualified executor, until the year 1779. Bur in the years 1779, 1780, and 1781, he renders no account, of crops; stating as a reason therefor the well known unsettled state of the country during those three years, when ithis state had become the seat of the revolutionary war.— From the year 1782 till the time of his delivering up one moiety of the estate to the complainant Benjamin Webh: which was in January, 1788, and the other moiety to Charles Webb, which was in February, 1789, the defendant accounts for certain crops which are those complained of, and for lumber sold. As to the property, contained in the inventory, more especially the negroes; defendant accounts for the deficiency of their number when delivered up to the heirs, compared with that contained in the inventory, by stating in his answer — “ that many of the testate’s negroes died of the cáihp fever, and many of them fanaway to the British : but how many of each, he cannot irecollect; but that none of them were evter sold, and that he thought himself fortunate in keeping what negroes remained.”

Such being the substance of the bill and answer, the accounts were referred to the master, who reports that he is At a. loss for any principle upon which he is to settle them, and prays the court to establish such as may be his guide. Infixing such principles for the master, the court have agreed to place out of the question certain minor charges* made by the complainants, such as letting the rice machines go to ruin, Sec. as sounding in damages alone, and to take into consideration only the alleged deficiency in the crops; and in the number of negroes' delivered lip to the heirs; And first* as to the deficiency in the crops. Upon this charge the complainants gave evidence of the crops made by the testator Benjamin Webb, for the six years preceding his death ; and of the crops made on a plantation in the neighbourhood by the executors of Austin / and from á comparison of these, with the crops of the estate, made by Edmund Bellinger, endeavoured to draw an in*497ference that the executor Bellinger was guilty of such gross negligence, us to make him liable either for the alleged deficiency, or for tin hire of the negroes. But the evidence in neither view affords a satisfactory guide to the court. In the first place, tbe crops of the testator Benjamin Webb appear to have d. creased annually, which cannot well he accounted for, but for some deterioration in tbe lands planted under the culture of that day : and if so, ibis cause of the decrease of crops must have increased annually, while the lands were worked by Edmund Bel-linger, since no improvements were made in his time.

Next, as to the second ground of comparison, it appears from the evidence that tbe estate of Austin did not lie in such an exposed situation as that of Webb, the former be-iag three miles off, and tbe latter lying on the main road leading from Charleston to Savannah, which was much frequented fay the hostile armies. That the lands of the estate of Austin were inland swamp, which in those days of the infancy of rice culture, was deemed much better, and indeed produced more tban tbe tide lands of Asbepoo, of which the estate of Webb consisted : and that John Moultrie, who was well known to be disaffected to the American cause, and to possess much influence among tbe British, was interested in the estate of Austin, and that this estate was consequently highly favored by the enemy. Such was the evidence offered upon this ground. But to have made the comparison satisfactory, testimony ought to have been • adduced to shew what crops Were made on lands situated in a similar manner with those of Webb, as to soil, tbe pitch of the tide and exposure to the depredations of the enemy; but in this instance an estate appears to have been selected, differing from tbe one with which it is compared in all these essential circumstances. Besides, if evidence had been produced to shew what kind of crops the defendant Bellinger made for himself, it would have afforded a pretty good rule of decision, since so far as these were good, he might have been charged with neglect in not doing so well for the estate as for himself; and *498so fár as they were Bad, he might have been exculpated. — ^ Some general testimony has been gone into to shew that he was a very-bad planter, but this has not descended to particulars so as to shew what was made for himself in each year, and thus to afford a certain rule by which we could compare his own crops with those made by the estate. Under this view of the case, the court are left in a state of uncertainty ; .for while on the one hand we profess ourselves not to be satisfied with the comparisons offered to us, on the other we are not altogether content with the ci-ops which have been made by Mr. Bellinger. Therefore being thus situated, we think it will be more safe to resort to the general rule formerly adopted in the ease of Mayrantvs. Davis, executor of Nelson, and to allow the complainant negro hire. But in the calculation of this, we cannot think it equitable to charge defendant with such hix-e, during the years 1779, 1780, and 1781. In thefhst year it has been proved that the plantation was very much distuihed, and that sixty four negroes went away in. one night,-during the month of May, which is a very critical time for the making of a rice crop. In the second year, it is notorious that the British overrun the whole of the lower country, and in the third year they were still in possession of it; and we find that nothing was allowed for that year, in the case of May rant vs. the executor of Nelson, and we do not see why the same rule should not apply in this case. Moi'eover, these were years of general confusion and calamity, in which, if any thing had been inade, there does not appear any evidence to shew that it could have been disposed of in market; and in which, all but the particular friends of the British thought themselves fortunate if they could raise provisions, and save their negroes from being carried off; but even in that many of. our citizens entirely failed. For all these reasons, we are of opinion that it would be rigorous to charge the defendant with negro hire in those three years.

The second ground of consideration is, the alleged deficiency in the number of negroes between those named in the inventory, and those delivered up to the *499heirs. To this charge the defendant Bellinger has answered as we have seen above — “ that he thought himself fortunate in beeping what negroes remained,” &c, and Mrs. Townsend has stated in her evidence, “ that she knows of herself that many of the negroes of the estate went off with the British, and that she heard her mother often count them over, and say that sixty-four had gone.” This testimony, when coupled with the answer, is satisfactory to the court; and under all these circumstances, we are of opinion that the complainants should be contented with what negroes were delivered up to them.

Let the accounts therefore be referred to the master to ascertain the negro hire from the year 1782, inclusive, till the year that Edmund Bellinger delivered up the estate to the complainants respectively;, charging the .defendant with such hire at the rate of 10/. per hand for the number of working hands employed in each year, taking that number at sixty workers, unless defendant can shew that they were fewer on the plantation. But the years 1779, 1780, and 1781, are not to be included. Let him also deduct from the amount of the negro hire, the monies credited to the estate by the executor Bellinger, for the annual sales of crops,.and other matters, as stated in the accounts produced by the defendant.

The defendant being dissatisfied with this decree, Mr. Cheves presented a petition for a rehearing.

The humble petition of Mary Bellinger, the defendant in the above cause, sheweth :

That your petitioner finds herself greatly aggrieved by a decretal order of this honorable .court, made in this case in April term last; whereby it is decreed that your petitioner shall account as executrix of her testator, who was executor of Benjamin Webb, deceased, for the hire of the negroes of the estate of the said Benjamin Webb, from the year 1782, inclusive, at the rate- of 10/. per working hand per annum, taking the number of working hands at sixty, unless your petitioner could shew that there were *500on the plantation,' whuvby your petitioner’s testator will be obliged to pay in addition to the. crops actually made for those years, 8864 8s. 8d, and in addition thereto, according- to the principle of Mayivnt v. executor, of Nelson, a sum in interest equal to 2,0704 making together the sum of 29564 8*’. 8d. which will be in a great degree ruinous to the estate- of her testator, her children and herself, and which is greati r than the whole value of the personal estate of the said Benjamin Webb, his debts deducted, when the same was appraised. Your petitioner therefore cannot doubt but that vour honors will indulge your petitioner in an inquiry into the grounds of this decree, in its principle of great importance, in its amount great, and in its relation to your petitioner and her children, all in all.

Your honors will be pleased to observe that the transactions which form the subject of consideration in this case, commenced at a period when the majority of your honors now in the fullness of years and wisdom, were yet in early youth. That the country has in the mean time suffered the effects of a calamitous war, and the ten fold evils of a civil contest, in which public records have suffered, but wherein in scarce any instance have private documents been wholly preserved. That her testator who was the actor in these transactions, was sorely afflicted by diseases for many years before his death, and unable to attend actively to business ; and that he has many years since paid the debt of nature, leaving his children in infancy, and, your petitioner always utterly unacquainted with accounts and unfit for business, wholly ignorant of this case, her testator haying in his lifetime suffered the loss of many papers by the destruction of his dwelling house by fire. And finally that under these numerous circumstances of disadvantage, your petitioner is called to this rigorous account. But from this detail your petitioner does not mean to contend that the complainant shall be denied a fraction of the claims which he can establish according to law, or that the rules of law or of evidence should be relaxed or ■varied in relation to her case; but it will strongly, no *501doubt impress on your honors minds thv. propriety and necessity of giving her the protection oí those rules, the rules of right reason, and the only sure indices of truth,

Your petitioner has been advised that the principle on which the complainants have endeavoured to charge the estate of her testator is in the language of their counsel, for gross negligence in the management of the estate. Now your petitioner humbly submits to your honors that your honors have not even suggested the existence of such negligence. But on the contrary, your honors have been pleased to say only, that you “ are not- altogether content with the crops which have been made by Mr. Bellinger,” from which it is clear that your honors did not mean to charge the defendant’s testator with “ gross negligence,” which would be utterly inconsistent with the well considered expressions in the above sentence and in divers others in the said decretal order. But if these words be expressive of your honors opinion, which your petitioner cannot doubt, as they are confirmed by the whole tenour of the decree, and not delivered through inadvertence, which there is no reason to believe, it will most clearly, follow, that the grounds of “ gross negligence” is not only not admitted, but denied by your honors. Your petitioner is also advised that there is great reason to doubt whether it is not departing from the principle of the decision of Mayrant v. Ex’ors. of Nelson, to predicate the liability of her testator on any species of negligence m the manager ment of the estate ; the principle of that decision- being as your petitioner has understood, and as the decree itself seems to prove, the failure of the executor to account with reasonable accuracy for. the actual crops of the estate, and. not the insufficiency of the crops, which seems to be a matter not in the nature of account, but sounding in damages, as much as the omission of any agent, public or private, to do his duty with fidelity, and with such skill and ability as the law requires.

But your petitioner is further advised that admitting the correctness of the principle, still the complainants ac*502cording to the rules of evidence as well as the plainest die-* tates of common sense & common justice, having founded their claim on “ gross negligence,” were bound to prove it. And that it was not at all incumbent on the defendant to discharge herself till evidence sufficient to satisfy the mind of the court and to authorize a decree, had been adduced by the complainants. Now if the evidence be adverted to, it will be seen that none such does exist; and the exposition thereof by your honors in the said decree has demostrated the fact.

The most favourable view for the complainant, of the testimony, admits of no stronger inferences than that Mr. Bellinger wanted ordinary judgment and skill, and failed óf reasonable success; while even these grounds are controverted, and as your petitioner thinks, fully disproved as to their influence on the crops of the estate, by very strong-testimony ; for it appears from the testimony of all the witnesses, that as the Ashepoo lands were then cultivated, it was not practicable on them to make a good crop, and the crops of Mr. Webb himself appear to have diminished every year, which as youi- honors remark, is an evidence of the increasing deterioration of the lands.

That even these crops were not equal .to those for which your petitioner’s testator has accounted, nor nearly equal, though adduced to prove neglect in your petition-,er’s testator: that after the management had passed into the hands of Col. Doyley, (talcing the price of rice to be the same always, as the rise or fall of the markets could not increase the produce of the land,) the crops were not nearly as great as those made by your petitioner’s testator ; and even at the high prices at which some of the latter crops sold, not equal in pecuniary amount. Thus then it clearly appears that there is not the shadow of pre-tence to say that there existed gross negligence, and that •the weight of evidence is against the charges of a want of ordinary skill and judgment, and reasonable success.- And so your honors have declared when you say, (stating forcibly, and not less j ustly than forcibly, the inapplicability and *503Insufficiency of «.he complainants proof,) that the complainants endeavour to draw an inference from the testimony, that the executor was guilty of “ such gross neglect as to make him liable for the alleged deficiency (in the crops) or for the hire of the negroes, but that the evidence in neither view affords a satisfactory guide to the courts” These are the words of the decree. Now if the evidence be shortly stated, which shall be done without gloss or coloring, so far as it relates to the crops actually made by Mr. Webb in his lifetime, by your petitioner’s testator, & by Col. Doyley afterwards, it will appear that your petitioners testator made greater crops than were ever made, according to any testimony before the court, oii the lands 6f the estate.'

In this view, for the conclusive and incontrovertible reasons given by the court, the years 1779, 1780, and 1781 are omitted.- Statement No. 1, hereunto annexed wilí shew that Mr. Webb made during six successive years but $>26 31 cents per hand — while it will appear by reference to statement No. 2, that your petitioner’s testator made during eight successive years, (excluding 1779, 1780, and 17S1, as aforesaid) 37 dolls. 18 cents, or nearly fifty per cent. more. • Statement No. 3, gives a view of the years to which the decree relates — which, though it excludes two of the largest crops, yields 32 3-4 dollars per hand; and by reference to statement No. 4, it will appear that for two years under the management of Colonel Doyley, there was made but $22 53 cents per hand, taking the rice at a fixed price, and by the actual sales, only g21 57 cents or nearly 73 per cent, less than the crops, made by your petitioner’s testator. And by the same statement, it will appear that with part of the negroes under the management of Col. Doyley, there was made during four successive years, taking the rice at a'fixed price, only, thirty-one dollars per hand, less by one sixth than the crops of your petitioner’s testator : and taking the result according to the high and therefore unusual prices of rice, there was made no more than $37 7 cents, per hand, which *504is less than the crops of your petitioner’s testator. Your petitioner would then inquire how, according to justice, jaw or evidence, her testator is to be charged with gross negligence, when it appears with mathematical certainty that he did more than was effected by the zeal of personal, interest, or the exertions of devoted friendship ? Why under these circumstances, severe and ruinous penalties are to be imposed upon her testator’s estate, herself and her children i Nay more, why she shall be obliged to suffer these penalties, not only without proof, but against evidence. The issue is, “ gross negligence, or not ? It is legally incumbent on the complainants to prove their case satisfactorily : but your honors have said, and by the best reasoning proved, what has been otherwise, demonstrated, that there is no satisfactory evidence on the subject ? — ■ Will it not then inevitably follow that the decree ought not to charge your petitioner’s testator ? Your petitioner therefore prays your honors to grant a rehearing of the said cause.

*504It is the course of the court to hear the argument on the merits, on the motion for the rehearing.

The cause was argued on the motion for a rehearing before Chancellors Rutledge and James.

afterwards delivered. the decree of the court.

On the Petition for a rehearing, in the interlocutory order made in this case upon which a rehearing is now prayed, it is stated among other matters, that upon the charge of gross neglect made by complainants against Edmund Bellinger, deceased, the complainants gave evi» dence of the crops made by the testator, Benjamin Webb, deceased, for six years preceding his death, and'of the crops made on a plantation in the neighbourhood by the executors of Austin; and from a comparison' of these with the crops made by Edmund Bellenger for the estate of Webb, endeavoured to draw an inference that Bellinger, the executor, was guilty of such gross negligence as to make him liable either for the alleged deficiency, or for the hire of the negroes. But the 'evidence in neither view affords a satisfactory guide to the court. After making some observations upon the .evidence both of the complainants and defendant, it is further stated' in the said decretal order, “ that under this view of. the case, the court are left in a state of uncertainty, for while on the one hand, we profess ourselves not to be satisfied with the comparison offered to us, on the other, we are not altogether content with the crops which have been made by Mr. Bellinger. Therefore being thus situated, we think it will be most safe to resort to the general rule, formerly adopted in the case of Mayrant against the executor of Nelson, and to allow the complainant negro hire.” Now, as the case was made out at the close of the former argument, the court was led to think there would be little difference between the sum usually allowed for negro hire, and the sum arising from the crops made by Mr. Beilin-*508ger, And as the evidence on the part of complainants was-by no means conclusive, and the crops made by the executor were very ordinary, it was deemed most safe tq resort to the rule before recited.

At the former hearing, though the counsel for the de«-fendant exercised much ingenuity, yet they did not enter into such clear calculations as at present. And this case depends much upon the clearness of calculation. Those statements now offered, and which are admitted by complainants counsel to be generally correct, have enabled the court to form a more correct opinion in the case. At present it appears that the amount of negro hire will be considerably more than the proceeds of the crops made by Mr. Bellinger; and although the court are not yet contented with those crops, still they think that before complainants ought to recover any more, than the amount of them, they ought to shew eithc ¡ that the executor wasted the estate, or that his accounts were false, or else that he was guilty of gross negligence.

But it has not been attempted to falsify the account?, neither has a devastavit nor gross negligence been proved! Complainants have proved Mr. Bellinger to have been abad planter ; but he was chosen by Mr. Webb to be hi? executor, who could hardly be ignorant of that circumstance, for they were near neighbours. He might have preferred his moral to his agricultural qualifications ; but this is of little moment, he was the object of his choice, the person appointed by himself to manage. And if he did that uprightly, but yet without, exercising superior judgment, this court wjll not interfere, so as to mulct his representatives. Were executors to be rigorously proceeded against, no good man would accept the office. None but the cunning or the bad man, who conceived that he had dexterity enough to defraud or to evade the law, would qualify and act as such. The court should therefore be careful not to make'executors responsible, except, for wasting the property'of testator, false accounts, 05 *509gross negligence. But neither of these have been proved to the satisfaction, of the court in this case.

Therefore let the former order be reversed. And as the master hath not yet reported on the accounts, let it be * A ' referred back to him to state them, and to report upon the same.