
    Buckner Haigood v. John D. Wells.
    Trustees of estates shall not exceed in expenditure the amount of the income, so as to charge the capital; in some cases of necessity this has been sanctioned by the Court:  but where the defendant had assumed the management of a testator’s estate without authority, and refused to qualify as executor, it was held that he was not entitled to the privileges of a trustee. The Court would not require him to give security, but ordered him to account annually before the Commissioner, until he qualified, and that no balance should be struck in his favor, nor allowance made for his personal services. [*60]
    The Court will not discharge an executor from his office. [x61]
    William Haigood, deceased, by his last will and testament, executed in 1821, devised and bequeathed his estate to his wife and children, and directed his executors to keep the negroes on the plantation, for the support of the family, until his youngest child should come of age (which will be in 1838,) and that then they shall be equally divided among his children; and appointed his wife, Nancy Haigood, and the plaintiff, his brother, his executrix and executor. Nancy Haigood refused to qualify; the plaintiff did, and took on himself the execution of the will, in the payment of debts and in the management, for some time, of the plantation, for the maintenance of the family. In 1828, Nancy Haigood married the defendant, Wells, who thereupon assumed the exclusive management of the negroes and plantation, has received the avails of the crops, and refuses to qualify as executor. The bill charges that the defendant latterly refuses to account to him as executor; that the plaintiff’s liability is endangered; and prays for a’discharge from the executorship ; and that the defendant may account, and be required to give security for the management of the estate.
    *The case was first heard before Chancellor Thompson, at Winnsboro’, who refused to relieve the plaintiff from his executor-ship, or to require the defendant to give security, but ordered him to account.
    Under this order the Commissioner stated an account between the estate and the defendant, and reported a balance in his favor.
    On the case coming before Chancellor De Suassttee, at July Term, 1832, on exception to the Commissioner’s report, he so modified the report, as to strike off the balance reported in favor of the defendant, on the ground, that a trustee of an estate for the support of minors, should not expend more than the income.
    From these decrees both parties appealed: the plaintiff, because the Chancellor had refused to relieve him from his executorship, or to require the defendant to give security; and the defendant appealed, because the Chancellor refused to allow him the balance reported in his favor, which, as he alleges, was for the necessary expenditures of the family.
    
      Peareson, for the plaintiff.
    
      Clarke and M’Dowell, for the defendant.
    
      
       Black v. Blakely, 2 M’C. Ch. Rep. 1.
    
   Harper, J.

With respect to the defendant’s first ground of appeal, we concur with the Chancellor, that trustees of estates for the support of minors shall not exceed in expenditure the amount of the income, so as to charge the capital of the estate.” In some cases, however, of manifest necessity, this has .been authorized by the Court, and when done by a trustee in such a case as the Court would have authorized, has been subsequently sanctioned. But the defendant is not entitled to the privileges of a trustee; he must be regarded in some degree as a wrong doer. We gather from the Commissioner’s report, that up to 1826, the defendant acted as the agent of the complainant, in the management of the estate, and accounted to him for the crops, but after that year refused or neglected to account. He has thus left complainant responsible for the management of the estate, though he has excluded him from the *control of it, and when he might have relieved him of that responsibility, by qualifying as an executor himself. He has besides, though reported to be industrious and frugal, managed badly. If managed properly, the property would in all probability have supported the family from the income. ' This is a sufficient reason to prevent the defendant’s breaking in upon the capital.

We cannot discharge the complainant of his office of executor. This Court changes other trustees upon proper cause shown ; but this has never been done in the instance of an executor. Nor do we perceive that we can compel the defendant to give security. He might be restrained from meddling with the management of the estate, and be compelled to give up the control of it to the complainant; but this is not what the complainant desires, and it would be extremely inconvenient. The family are to be supported by the estate, they must live on the land and have the services of the slaves, and it is a matter of almost absolute necessity, that these should be in some degree under the control of the defendant, the head of the family.

What we can do, however, is to confirm the decree of the Chancellor, that no balance shall be struck in his favor, and further to decree that until the defendant shall think proper to qualify as executor, he shall account annually before the Commissioner; that in no instance shall any balance be struck in his favor, nor shall any thing be allowed for his personal services. The decree of the Chancellor is modified accordingly.

Johnson and O’Neall, Js. concurred.  