Stephen L. Lee vs. Thomas N. Pindle and Emeline his wife and others, 12 G. & J. 288

Stephen, J. delivered the opinion of the court. In the discussion of this case, several points have been raised and argued by the counsel of the appellant, which this court now have to consider and decide. The first objection is, that the final decree of the Chancellor was premature, the case not being at that time ready for the judicial action of the court, we think there is nothing in this objection.

Before the first decree was passed, and prior to the first appeal, which was dismissed by this court as illegally taken, the cause, by consent of parties, had been submitted to the Chancellor upon the auditor’s report, and when the case was dismissed from this court, and the cause went back to the Court of Chancery for further proceedings, it was brought to the notice of that court by the petition of the appellee, which placed it in the same situation as if no appeal had been taken, and the cause had never been removed from that jurisdiction.

We think the second objection of the appellant equally untenable and unfounded, No reservation of any equity for further directions was necessary in the first decree for a sale of the negroes, to warrant the court in granting full and complete relief to the appellee for the hire and annual value of the negroes, when the final decree was passed.

The principle seems to be settled, that the court will not, on further directions, decide a question not reserved by the decree; the rule, however, does not prevent the court from giving interest on further directions, though the question of interest be not reserved by the decree. For this principle, see 2 Smith’s C. P. 403, 404.

The same principle which would warrant the allowance of interest without any reservation to that effect in the decree, would, we think, upon fair and reasonable grounds of analogy, sanction the allowance of hire and value for the negroes, without any reservation having been made upon that subject, when the decree for a sale was passed.

Upon the appellant’s third point, which charges error in the principles assumed by the auditor in stating the account, which was adopted by the decree of the Chancellor, we think the objection is well founded, so far as he has relied upon the estimates of witnesses, who did not know the negroes in question. Their estimates ought not to have been mixed up with, and allowed equal weight and influence, with the valuations of those who knew the negroes, and who testified from such, their personal knowledge. An average of hire and value founded upon such a principle, might work great and serious injustice.

Proper allowances ought also to be made for the expense of maintaining and clothing the whole, as well those incapable of labor as those who were able to work. The hire of the negro man Abraham, who was drowned, ought to have been carried up to the time of his death ; and ought not, certainly, to have been extended beyond that period, as a charge against the appellant. We think there was no error in the charge of interest on the annual hire or value of the negroes’ services ; at the expiration of each year he was a debtor to that amount, and interest, we think, was properly charged upon it.

We think that the appellants fourth point is clearly untenable. The will and codicil are to be construed together as one instrument, and are to be reconciled as far as practicable; but if there be any conflict or repugnancy between them, the codicil, as the last indication of the testator’s mind, must operate in preference to the will. By the second codicil, the negroes are given to the wife for life, in language too clear to be misunderstood ; and at her death the direction is equally explicit, that they are to he divided amongst the legatees therein named.

If this construction be correct, the fifth point is wholly untenable ; because the pecuniary legatees, and the personal representative of the widow, have no interest which can be affected by this decree, and are therefore not necessary parties to this suit. From the death of the widow, the hire and profits of the negroes’ services ceased to be a fund for the payment of their legacies, and they were no longer interested in any question, touching that subject. For reasons already assigned, we think that the sixth point, which objects that the suit was prematurely brought, is wholly unavailing.

Upon the death of the widow, the right of the specified legatees to call for a distribution immediately attached, and their standing in court cannot, of course, be impeached, upon the ground that their bill was prematurely filed. The seventh and eight points relative to costs, cannot be sustained. The principle is well settled, that fhe question of costs in Chancery is discretionary.

At the time of the first decree, the costs were properly charged on the fund, because at that time no improper obstacles had been interposed by the appellant, to the attainment of the objects of the suit; but afterwards (he case assumed a different aspect; andt he untenable and vexatious grounds of defence taken by the defendant, well warranted the Chancellor in the course which be pursued in his final decree upon the subject of costs, which was, that the defendant, Lee, should pay to the complainants their costs in that court. Upon the ninth point, we think there is error in the decree of the court below.

The distributive share of each legatee should have been liquidated, and finally settled by the decree, so as to prevent all future controversy and litigation upon the subject; an object which the Court of Chancery is always studious to accomplish, and which is the main and leading purpose of the rule, which requires that all proper patties should be made to every suit therein instituted.

Upon these views of the case, disagreeing as we do with the Chancellor in the particulars mentioned above, we think that the decree of the court below ought to be reversed with costs, and the cause remanded for further proceedings according to the principles herein contained. decree reversed with costs.