
    Elizabeth Lafont v. Francis Ricard, Executor of Guillaume Lafont.
    An executor is not precluded, by having written a letter to a legatee, acknowledging her right to the estate, from requiring judicial proof, not only of her identity, but also of the facts and circumstances necessary to establish her right, if there be no ground to conclude, that these facts and circumstances are within his own knowledge.
    To exempt an executor irom interest on funds retained in his hands to meet an alleged claim on the estate, it must appear, either that he supposed the claim to be valid, or that some step had been taken to enforce it, as by a suit j and it must also appear, that he actually kept funds in hand, to pay the claim, rn.de Brown v. Vinyard, ante, p. 460.
    The right of a legatee claiming the whole estate being established as to part only, and the right to the residue depending on further proof, the executor ordered to pay such residue into court subject to its further order.
    This was a bill for an account of the estate of defendant’s testator, Guillaume Lafont, late of Beaufort, deceased, who devised his whole estate to his sisters Marguerite, Marie, and Elizabeth, “ but should either of them be dead, then to the survivors, or survivor of them, and to their, or her heirs foreverand if all his said sisters died before him, the testator bequeathed his estate to his executor. The complainant, who resided in the kingdom of France, claimed the whole estate, as sole survivor of the testator’s sisters, and legatees. The cause came on for hearing before Johnston, Chancellor, at Charleston, in January, 1831, and was heard upon the merits, and also upon exceptions to the master’s report on the accounts, which had been taken preparatory to the hearing. The questions made will be sufficiently understood from the opinion delivered in the Court of Appeals. His Honor’s decree was for the complainant, and the defendant appealed.
   O’Neall, J.,

delivered the opinion of the Court.

The identity of the complainant as the sister, and legatee of the testator, and her right, consequently, to one-third of his estate, is established we think to a reasonable certainty; but whether she is, or is not, the survivor of the other two sisters, and legatees, is altogether without proof. It may be conceded, that the defendant, the executor, soon a®er ^113 testator’s death, supposed her to be the only surviving sister, and addressed her as such; but still it would be unreasonable to conclude, that he knew the state of the testator’s family better than the testator did himself. When he made his will, he was uncertain whether his sisters were alive, or dead; and under these circumstances it cannot be inferred, that the defendant knew more than the testator. In asserting a claim of this kind, the complainant ought to furnish, at least, some proof of the death of the other legatees.

Cross, for the motion.

Petigru, contra.

In relation to the claim to be excused from the payment of interest, on so much of the funds as would have been necessary to pay Flotard’s claim, if it had appeared, thaf the executor had supposed the claim to be valid, or if any steps had been taken to enforce it, as by a suit, there would have been great force in this objection; but it does not appear, that the claim ever was put in suit, or that the executor believing it to be just kept funds in hand to pay it. He cannot therefore be excused from the payment of interest on that sum.

It is ordered, and decreed, that the Chancellor’s decree be so modified, that the defendant do pay to the complainant one third part of the sum reported by the master, with the interest thereon; and that he do pay the residue into Court to await its further order, upon any shewing to be made by the complainant, that she is the surviving legatee under the testator’s will. In all other respects the Chancellor’s decree is affirmed.

Johnson, J., and Harper, J., concurred.

Decree modified.  