Charlotte L. and Lindley M. Smyth vs. William Burns's Administrators, 25 Miss. 422

Mr. Justice Fisher delivered the opinion of the court. This is an appeal from a decree of the probate court of Adams county, overruling certain exceptions taken by the appellants to the account of William Burns, as executor of the last will and testament of George W. Smyth, deceased.

The executor in his account credited himself with the sum of five thousand dollars, money of his testator invested in the stock of the Commercial Bank of Natchez, under the following clause in the will of the deceased,' to wit: “ In further trust and confidence} that they (the executors) will invest all the residue of the proceeds of my estate -in good securities, in the most profitable manner,” &c.

The testimony shows, that the stock of that bank, at the time this investment was made, was taken by the most prudent and cautious men in the country; that the investment was considered safe and profitable, and that for several years it yielded a dividend of five per cent, semi-annually.

The whole testimony shows, that the executor acted in good faith and with an eye to the interest of the legatees under the will. -Under this state of case, but two questions can arise for consideration, and théy are: first, whether the will conferred upon the executor the power to make the investment; and secondly, whether the power, if conferred, was prudently exercised. The language of the will is too plain to admit of construction. The power is clearly granted. In regard to the second question, it is only necessary to state our decision. The testimony leaves no room for doubt on the. subject.

The exception was correctly overruled by the court below. Another question is presented upon the account. An effort was made to charge the executor with a certain note, exceeding §3,000, payable to Eli Huston, also one of the executors under the will. The proof is, that Burns and Huston executed separate bonds, and qualified separately in the probate court as executors. Huston died about June or July, 1835. The note was paid before his death, but the witness is not positive whether it was paid to Burns or to Huston.

In the absence of proof to the contrary, we must presume that payment was made to the payee (Huston) of the note. Decree affirmed. Yergee, J., having been employed as counsel in the probate court, took no

part in this decision.