That the executors did not execute any bond for the faithful execution of their trusts, etc. The answer of the defendants was filed on the 19th day of September, 1839, and in almost every particular traverses the allegations of the amended bill. It need not, therefore, be set forth at length.

These were the issues between the parties. The District Court, after a careful review of all the points in the cause, decreed that the complainants recover of the defendant the sum of $5,212.92, to be levied of the goods and chattels, lands and tenements, of the said Samuel Savage; and that the defendant pay the costs of the suit.

The above sum of $5,212.92 was made up of the principal sum of $2,118 received by Savage on the 21st July, 1818, from the sale of the Kentucky lands, and interest on that amount from the said 21st July, 1818, to the commencement of the term of the court when the decree was rendered, amounting to the sum of $3,094.92.

On the day before the decree was rendered, George M. Savage, the executor of the last will of Samuel Savage, was removed from his office of executor by the court in Alabama having jurisdiction to make the removal, and Vincent 248*] M. Benham was appointed the *administrator de bonis non, with the will annexed, of the said Samuel Savage.

The complainants appealed from the decree, and executed bond to prosecute the appeal. They complained that the District Court erred in not decreeing the whole amount claimed by them in their bill and amended bills. But they ordered execution to issue for the amount for which the decree was rendered, which was levied on a large number of slaves, which were claimed as belonging to the estate of Samuel Savage.

An order granting an appeal to the defendant George M. Savage was also made by the court, and bond was ordered to be given within a stipulated time; but in consequence of the removal of George M. Savage the order could not be executed, and no bond was executed in conformity with the order.

Upon a motion made to this court by Benham, at the January Term, 1843, the execution that issued on the decree was held to be a nullity, and an intimation given that the decree was not rendered against the proper party in the District Court.

On the 4th October, 1844, a bill of revivor | was filed by the complainants against Vincent M. Benham, the administrator de bonis non of Samuel Savage, and he was brought before the court by process.

In November following, Benham filed his answer to the bill of revivor, and a demurrer at the same time.

The causes of the demurrer were:

1. That the bill of revivor did not state the proceedings and relief prayed by the original bill.

2. That it did not show or allege that the defendant ever had any assets belonging to the estate of Samuel Savage.

3. That the defendant, as administrator de bonis non, with the will annexed, of Samuel Savage, could not be made a party to the origpal bill by hill of revivor.

4. That the defendant, as such administrator, was not in privity with George M. Savage, against whom the decree was rendered; and for want of that privity, a bill of revivor would not lie.

5. That the bill of revivor did not show whether the decree was rendered before the removal of George M. Savage as executor. The court overruled the demurrer. The answer stated that the defendant had no personal knowledge of the original suit, or of the proceedings and decree therein. It admitted the removal of George M. Savage from his office of executor, on the 28th of November, 1842; and that the defendant, on the same day, within a few hours afterwards, was appointed administrator de bonis non, with the will annexed, of Samuel Savage, by the same court. It alleged that at the time the original decree was rendered against George M. Savage, the defendant Benham was the administrator de bonis non.

*On the 29th November, of the same [*249 term, the defendant Benham moved the court to dismiss the suit for want of prosecution; which motion was overruled.

The District Court, notwithstanding the defendant's answer, ordered that the decree against George M. Savage, as executor of Samuel Savage, be revived against said Benham, administrator de bonis non, with the will annexed, of Samuel Savage, and the defendant Benham prayed an appeal.

Upon these cross appeals the cause came up to this court.

It was argued by Mr. Morehead and Mr. Sergeant for Savage's administrator, and by Mr. Crittenden and Mr. Berrien for Taylor, etc.

Mr. Morehead. I. For the reasons alleged in the defendant's demurrer to the complainants' bill of revivor, the demurrer ought to have been sustained, particularly because it was erroneous to revive a decree against the administrator de bonis non, which had been rendered against the executor of Samuel Savage. Grout v. Chamberlin, 4 Mass. 611; Allen v. Irwin, 1 Serg. & Rawle, 554; Alsop v. Mather, 8 Conn. 584; Carrol v. Connett, 2 J. J. Marsh. 199, 206; Bradshaw v. Commonwealth, 3 J. J. Marsh. 133; Graves v. Downey, 3 Mon. 353; Slaughter v. Froman, 5 Mon. 20; Potts v. Smith, 3 Rawle, 361; Bank of Pennsylvania v. Haldeman, 1 Penn. 161; Kendall v. Lee, 2 Ib. 482; Hagthorp v. Hook's Administrators, 1 Gill & Johns. 270.

On the merits. 1. The bill having been filed with the obvious design of making the executor of Samuel Savage liable for the fiduciary delinquencies of the said Samuel, as one of the executors of Taylor, it was erroneous to decree against him for the personal acts and misconduct of the said Samuel. Dance v. McGregor, 5 Humph. 428.

2. The letters testamentary granted in South Carolina conferred no power or authority on the executors of Taylor to act without the jurisdiction of that State. Carmichael v. Ray, 1 Richardson's S. C. R. 116; Kerr v. Moon, 9 Wheat. 565; Doolittle v. Lewis, 7 Johns. Ch. R. 45, 47; Attorney-General v. Bouwers, 4 Mees. & Welsby, 171, 190, 191, 192; Story on Conflict of Laws, p. 425, sec. 514.

3. The sale of the Kentucky lands, there- [turbed by surcharging and falsifying the same fore, by Samuel Savage, did not devest the by specific allegations and proofs of error or residuary legatees of Taylor of any title they omission. Wooldridge's Heirs v. Watkins Exmay have had to those lands, or of any inter-ecutor, 3 Bibb, 352; Quinn v. Stockton, 2 Litt. est in the same.

First. Because the authority conferred by the will on the executors to sell the real estate must have been strictly pursued. Williams v. Peyton's Lessee, 4 Wheat. 77; Wiley v. White, 3 Stewart & Porter, 355; 4 Johns. Ch. R. 368; 6 Conn. 387; 2 Swinburne, 730, note; 10 Pet. 161.

Second. Because the authority, being joint, 250*] could not be executed *and performed by one only. Halbert v. Grant, 4 Mon. 582; Smith v. Shackelford, 9 Dana, 472; Johnston v. Thompson, 5 Call, 248; Carmichael v. Elmendorff, 4 Bibb, 484; 14 Johns. 553; Co. Litt. 112. b.

4. The devise of the testator's real estate to be sold conferred an authority by implication on the executors to sell. Anderson v. Turner, 3 A. K. Marsh. 131. But it was a naked authority, uncoupled with an interest; and the lands, until the sale was made, descended to the heir-at-law of the testator. Ferebee v. Procter, 2 Dev. & Bat. 439; King v. Ferguson, 2 Nott & McCord, 588; Shaw v. Clements, 1 Call. 429; Warneford v. Thompson, 3 Ves. Jun. 513; Hilton v. Kenworthy, 3 East, 557; Co. Litt. 236, 112, 113, 181, 2 Sugden on Powers, 173, 174.

5. The will of William F. Taylor was never offered for probate, or proven in Kentucky by Samuel Savage, or by either of the executors. As to the real estate, therefore, which was in Kentucky, William F. Taylor died intestate. Kerr v. Moon, 9 Wheat. 565; McCormick v. Sullivant, 10 Wheat. 202; Carmichael v. Ray, 1 Rich. S. C. R. 116; Smith v. Shackelford, 9 Dana, 472. And the lands descended, of course, to his heirs-at-law.

The complainants were his heirs-at-law, as well as residuary legatees, and they were, at the time of the testator's death, aliens. It follows that they could not take the Kentucky lands, which fell by escheat to that Commonwealth without office found. Montgomery v. Dorion, 7 N. H. 475; Mooers v. White, 6 Johns, Ch. R. 360; Doe v. Jones, 4 T. R. 300; Doe v. Acklam, 2 Barn. & Cress. 779; Doe v. Mulcaster, 5 Barn. & Cress. 771; Sutliff v. Forgey, 1 Cow. 89; Dawson's Lessee v. Godfrey, 4 Cranch, 321; Co. Litt. 2 b.

R. 346; Vance's Administrators v. Vance's Distributees, 5 Mon. 521; Preston, Executor, v Gressom's Distributees, *4 Munford, [*251 110; Owens v. Collinson, 3 Gill & Johnson, 25. 8. That William F. Taylor had no title which he could transmit by will to the lands devised to be sold, he being a trustee only, holding the legal title for the use and benefit of others, not parties to this suit.

9. That the District Court of Alabama had no jurisdiction to adjudicate upon the matters contained in the bill and amended bill of the complainants. It was manifestly a suit against the executor of Samuel Savage, for a final settlement of the fiduciary accounts and transactions of the latter as executor of Taylor. The courts of South Carolina alone had jurisdiction of the matters in controversy between the parties, and the District Court ought to have dismissed the complainant's suit. Vaughan v. Northup's Administrators, 15 Pet. 1; Story on Conflict of Laws, secs. 513, 514, to the end, pp. 422-426.

Mr. Crittenden, for Taylor, etc., relied upon the following points and authorities:

1. That the peremptory direction given in the will of William F. Taylor, to sell his lands, etc., is equivalent, in every equitable sense, to a devise to his executors and the survivor of them, with authority to sell, and will equally prevent an escheating of the land. Dana, 1-12, etc.

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2. That although it was a prerequisite to his legal authority to sell the Kentucky lands, that he (Samuel Savage) should have obtained letters testamentary in Kentucky; yet, if without he took upon himself to act under the will of his testator, to make sales and receive money on them, as executor, he cannot, because of that irregularity, excuse himself from his responsibility to the complainants, the legatees, for that money so received; as executor he received it, and as executor he must account for it. for it. 7 Dana, 349. Their authority was from the will. 7 Dana. 351-355.

3. That the least measure of his responsibility is the amount of money he received, as executor, on the sales of Kentucky lands made by him as executor, and that he cannot be allowed to evade that by any impeachment of the sales made by himself.

7

6. That the complainants have disaffirmed the sale made by Samuel Savage of the Ken- 4. That having undertaken to act in refertucky lands, by having since sold and con-ence to said lands in Kentucky, he was bound veyed the same lands. This they could not do to fulfill his undertaking and the trust assumed and still insist on Savage's liability for the sale by him, and is responsible for the damage or made by him. If he sold the lands in Ken- loss of land occasioned by his failure to do so, tucky in violation of his trust, the beneficiaries and by his inattention and negligence. of Taylor cannot demand to have the lands and Dana, 349. also the purchase money received for them. By following the title to the lands they repudiate the sale made by Savage. Murray v. Ballou, 1 Johns. Ch. R. 581; 2 Johns. Ch. R. 445; Story on Eq. Jurisp. 505-507; 5 Ves. Jun. 800.

7. That in April, 1818, a final settlement was made in the proper court in South Carolina of all the official transactions of Samuel Savage, as executor of Taylor, and that such settlement could only be impeached or dis

5. That, in respect to the land in Kentucky which he did sell, he is liable for the fair value of it, or the price at which he could have sold it at the time, which was much greater than the price at which he did sell.

6. That the removal of Samuel Savage from the State of South *Carolina; the resi- [*252 dence of the complainants in a foreign and distant land, and the coverture and infancy of some of them; the misstatements, equivocations, and fraud of the said Savage, and his

concealments from the complainants of his transactions in respect to said lands, especially, exclude him from all benefit or advantage from lapse of time or the statute of limitations. 1 Madd. Chan. 98, 99; 2 Ibid. 308-310; 10 Wheat. 152; 1 Sch. & Lef. 309, 310, 428-431, 413-442; 2 Ibid. 629, etc.

The money received by Savage, as executor of Taylor, for land sold by him, as executor, ought to be accounted for by him as other moneys arising from the estate of his testator. He did so account for the proceeds of the land sold in Carolina. And why should he not for the proceeds of the Kentucky lands? He charged the estate for going to Kentucky to attend to those lands, etc. He did give some attention to, and did sell a portion of, them. And what, now, are the objections made to his responsibility? They are, in substance.

1st. That he was not bound to attend to them, as executor only in South Carolina.

2d. That complainants were aliens, and that the land escheated on the death of the testator, Taylor.

3d. That complainants have lost or waived all right by the statute of limitations and lapse of time.

4th. That they have lost or waived all right of recovery against him by the compromises and sales made by their agent, Primrose.

trust in the contemplation of a court of equity, and will be enforced as such, just as if the land had been devised on trust for the same purposes. 1 Madd. Chan. 55 [56]; Harding v. Glyn, 1 Atk. 469; Clay & Craig v. Hart, 7 Dana, 1, 12, etc.; Co. Litt. 113 a, and note [2], which see; 3 Co. Litt. 146, note, 113 a; 2 Sugden, 173.

And even the non-execution of the powers would not defeat the trust; the general rule in equity is, "that a trust shall never fail of execution for want of a trustee," etc. 1 Madd. Chan. 455-458; Co. Litt., and note, as above referred to; 2 Atk. 223.

As to the third objection, neither the statute of limitations nor lapse of time apply to this case. The circumstances of the case, and the fraud and concealment, exclude them from any operation on the case. The suit was brought immediately on the discovery of the cause of action. 1 Madd. Chan. 98, 99; 2 Ibid. 308, 310; Elmendorf v. Taylor, 10 Wheat. 152; 1 Sch. & Lef. 309, 310, 428, 431, 413-442; 2 Ibid. 629, etc. The facts answer this, and it seems but a mockery to insist on the last desperate effort at compromise as releasing defendant.

Fourth objection.

Mr. Berrien, on the same side with Mr. Crittenden:

To the first, it is deemed a sufficient answer It is objected by the opposing counsel, that to say that he did assume and undertake to at- this decree cannot be revived against defendtend to those lands, and was paid for it. And ant, because, as administrator de bonis non, he that was enough to charge him for a due re- has no privity with George M. Savage, the exsponsibility for his performance of his under-ecutor of Samuel. But what are the facts in taking-to charge him as agent or executor de son tort, if not otherwise. 7 Dana, 349, 351355.

But, moreover, he was in the nature of a trustee under the will, and having undertaken the trust by assuming the office of executor in South Carolina, he was bound to fulfill the whole trust by proving the will in Kentucky, or by doing whatever else was necessary to a completed and faithful performance of it.

the case?

Mr. Berrien here reviewed the facts, and then proceeded:

The privity which is necessary in this case is privity with Samuel Savage, against whose estate the decree was rendered, and out of whose assets it was payable.

If a decree is obtained against an executor, for the payment of a debt of his testator, and his representative does not become the representative of the testator, the suit may be revived against the representative of the testator, and the assets may be pursued in his hands, without reviving against the representative of the original defendant.

The testator contemplated this, as is clearly inferable from his will. Savage was not merely an executor, in the ordinary sense, but as to the lands of the testator he was in the condition of a trustee. And, accepting the trust, he must perform the whole of it, as much as if If George M. Savage had died intestate, his he had accepted the same trust created by deed administrator would not have been the repinstead of will. The power given by the will. resentative of Samuel Taylor. In this event, in respect to the lands, is different from and this suit might have been revived against the collateral to the mere official power of an ex-administrator de bonis non *of Samuel [*254 ecutor, and constitutes him in effect a trustee Taylor. Story's Eq. Pl. sec. 370; Mitf. Eq. whose powers and duties are not governed by Pl., by Jeremy, 78; Johnson v. Peek, ? Ves. the rules or laws which regulate more execu- 465. torial duties. His duties in the one case depend on the laws which regulate his office; in the other, on the nature of his contract or undertaking.

253*] As to the second objection, that the lands escheated, etc., the answer is, that it is too late to urge that defense against his own act in selling them and receiving money for them.

But it is, moreover, insisted that the lands did not escheat. It is settled that lands devised to be sold and the money paid to aliens do not escheat. Craig v. Leslie, 3 Wheat. 563; Craig v. Radford, 3 Wheat. 594.

The direction given in this case to sell is al

Then having been removed from office, under the statute of Alabama-having no representative who can represent the estate of Samuel Savage-it is only against his administrator de bonis non that this proceeding can be had; or there is a right judicially ascertained, without a remedy.

As to the Kentucky lands.

The first objection is, that the District Court, of Alabama, acting as a circuit court, had not jurisdiction of this case. When I encounter an argument, leading to a conclusion from which the intelligence of professional men must, in my judgment, revolt, however it may seem to be supported by authority, I am dis

posed rather to distrust my own capacity to detect its fallacy than to yield to the conclusion to which it would lead me. I am sure I am not singular in this feeling. Let us examine the conclusion to which the argument would lead.

Samuel Savage left the State of South Carolina in 1818, removed first to Tennessee, and afterwards to Alabama, where he settled permanently, and died.

After 1818 he was not suable in South Carolina.

Not in the State courts. It does not appear that he was ever there after that time; and if he had been transiently there, complainants, aliens, residents in a foreign country, were not required to be on the watch to catch him there. No original process issued by the State courts of South Carolina, which was not personally served, could have rendered a citizen of Alabama amenable to their jurisdiction.

Not in the courts of the United States in the District of South Carolina, for the words of the Judiciary Act of 1789 are: "No civil suit shall be brought in the courts of the United States against a defendant, by any original process, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ."

The conclusion, from the proposition of defendants, then, is this: that until Samuel Savage chose to go to South Carolina, and subject himself to the service of process, he was not liable to suit anywhere; that complainants were remediless, or that their right to a remedy depended upon the will of their adversary. Is the jurisprudence of the United States subject to this reproach? Has this court pronounced any decision which may, by fair construction, lead to such a consequence? This is said to be the age of progress; but is it a progress in intelligence, or its opposite? What is the reference to authority on this point?

[Mr. Berrien here examined and commented on 14 Peters, 166; Story's Conflict of Laws, secs. 513, 514; 15 Peters, 1.]

We are seeking to obtain from this defend255*] ant, as administrator de *bonis non, the balance which was in the hands of Samuel Savage of the estate of W. F. Taylor, of which we are legatees. We charge him, and we prove our charges, with fraudulent concealment of the assets which came to his hands; and we seek to make his estate, in the hands of defendant, liable for his individual personal default; and this right, with the aid of a court of equity, we can enforce wherever we find him.

If he had remained in South Carolina, we would of course have sought redress there, and in its courts. But he voluntarily withdrew from the protection of those courts. He was a fugitive from justice, liable to arrest wherever he was found.

The bill, it is said, seeks an account; but not that merely. It alleges fraud and concealment; it charges Samuel Savage with official misconduct, for which it holds him to individual responsibility; it does not ask him to pay for these frauds out of the assets of W. F. Taylor, which he has wasted, but out of his own estate, into which those assets have been converted.

The proposition, that the courts of South Carolina have exclusive jurisdiction, cannot be urged as an objection to the jurisdiction of the Circuit Court of Alabama. Their exclusive jurisdiction is over the subject matter—the administration. The executor is personally amenable to the forum of his domicil. There he may rely on a settlement and discharge by the courts of South Carolina, as having exclusive jurisdiction of the subject matter, and the acts of the court of South Carolina should have like effect in the court of Alabama as they would have had in the State in which they were rendered; but this is the extent of the exclusive jurisdiction which can be claimed for them, in behalf of an executor who is a fugitive from their borders.

The third, fourth, and fifth points of the respondent's statements will be considered jointly.

1. The order of testator, that his lands should be sold—especially that they should be sold on "securities to the satisfaction of his executors"-gave to them a power, an authority to sell, by implication, but as ample as if it had been given by express words.

The appointment of his executors, and the appropriation of the proceeds of the sales, so to be made by them, to purposes within the scope of their duties as executors, which he did by the devise of all the remainder or residue of his estate, after payment of certain legacies, imposed upon them an obligation, and charged them with a trust-that of so appropriating them.

The executors were the agents of the testator, his attorneys, if you will, but more properly donees of the power conferred on them by him for the sale of these lands. But they were also trustees of the devisees, in relation to the fund thus acquired. They had no interest in that fund; but the authority conferred on them was not, therefore, a mere naked power. It was a power coupled with a *trust, which it [*256 is the peculiar province of a court of equity to guard and to enforce. 2 Story's Eq. Jurisp. secs. 1059–1061. And a court of equity will construe the will to give them such an interest as is necessary to the execution of the trust.

But we are seeking to make Samuel Savage, who was only one of these trustees, alone liable for the faithless execution of his trust, and we are met with the objection—

1. That the authority and the trust, being joint, could not be executed by one only. There are numerous decisions on this question. 2 Story's Eq. Jurisp. sec. 1062. The whole doctrine is summed up by Mr. Sugden. Sugden on Powers, ch. 3, sec. 2, art. 1, pp. 165, 166, 3d edit.; 2 Story's Eq. Jurisp. p. 399, in note.

A power coupled with a trust will survive, and may be executed by a surviving trustee. Osgood v. Franklin, 2 Johns. Ch. R. I-21.

Power to executors to sell, not by name, as executors, may be executed by one. & Craig v. Hart, 7 Dana, 1.

but

Clay

Where one of several trustees refuses to accept, the power vests in the others. King v. Donnelly, 5 Paige, 46.

2. It is objected, that as this was a naked power (that is, as there was no express devise to trustees), the land must have descended to the heirs, to await the exercise of the power;

that as the will was not proved in Kentucky, and therefore quoad testator's property in that State, he died intestate, it must for that cause also have descended to the heirs; and as these heirs were aliens, it vested by escheat in the State of Kentucky.

The intention of the testator can be effected, then, in one of two ways:

By construing the will so as to imply a devise to the executors for the purpose of effect. uating the trust.

2. By considering the land as money from the death of the testator, when his will became operative.

The answer is, that a court of equity will carry out the manifest intention of a testator, will see that this trust is executed according to The testator was a naturalized citizen. All such intention, and will raise such an estate by his relatives were aliens, and incapable of holdimplication in the trustee as is necessary to ac-ing real estate. Aware of this disability, he complish this object. The court will imply a directs his property, real and personal, to be power to sell in executors not expressly desig- converted into money, and bequeathes it to nated for this purpose. 2 Story's Eq. Jurisp. them. There can be no doubt of his intention sec. 1060. They will imply such a power, to give to his executors such power as was necfrom an authority to "raise money" out of essary to effectuate his will. That will became lands. Ibid. sec. 1063. Nay, they will imply operative upon his death, and did not dea power to sell, from a power to raise money pend upon the probate. The court will imply out of "rents and profits." Ibid. sec. 1064. a power to sell. They will imply a trust to disAs a power to sell will be raised by implica- tribute. Will they not consummate the intention, not only without but against the words of tion of the testator, either by considering the the will, as in the case cited, "rents and prof-land as money at the time of his death, or by its." As a trust to appropriate proceeds will in giving to the trustees such an estate as is neceslike manner be implied, in both cases, to ef- sary to protect the land from escheat? Craig fectuate the intention of testator, so also where | v. Leslie, 3 Wheat. 577. The lands in the there is no express devise, implication will not possession of the heir are held subject to the stop short of a fee where there are trusts to be exercise of the power. Why should it not be executed which require it. Markham v. Cooke, in the hands of the State? Or is the lord, who 3 Burr. 1686. In Trent v. Henning, 4 Bos. takes by escheat, *more favored than_ [*258 & Pull. 116, the devise to trustees, as well as the heir, who takes by inheritance? Pawlett the trust for sale, was implied, and yet they v. Attorney-General, Hardres, 465, 469; 2 Atk. took a fee. Fletcher on Est. Trust. 1-4, 19. 223. I am aware of the cases which decide that a mere naked power to executors to sell will not give an interest; but,

1. This is not a mere naked power; taken in connection with the devise of the residue, it is a power coupled with a trust.

257*] *2. It is indispensable, to effectuate the intention of the testator, that such an interest should pass.

But however these questions may be decided, defendant cannot evade the equitable demand of complainants. Whether this power was capable of being executed separately by Samuel Savage, or whether, for want of an express devisee, it was incapable of being executed at all, the defendant cannot escape.

An affirmance of the positions for which we contend will increase the amount for which he In the cases referred to, the question was is answerable; a denial of them will not release between heir and distributee, or devisee, or him from responsibility. He can only escape creditors. The land descended to the heir, by maintaining, that the fraudulent assumption subject to the exercise of the power, and the of the character of the trustee of these comintention of the testator was accomplished. Ac-plainants, the concealment from them of his cording to the argument of respondent's coun-actings and doings while professing to act as sel, that cannot be in this case, unless such an interest is held to pass.

Yes, there is another mode. Land directed to be sold and converted into money loses the quality of real, and is converted into personal estate, and e converso of money directed to be laid out in land. 2 Story's Eq. Jurisp. sec. 790. In this latter case, anterior to the sale, and by the mere force of the will, and the money so fully becomes land as, (1) not to be personal assets; (2) nor to be subject to the courtesy of the husband; (3) nor to pass as land by will, and other consequences. So of land directed to be sold. 2 Story's Eq. Jurisp. sec. 109, in note; Hawley v. James, 5 Paige, 318. As to the time when the conversion shall be supposed, Hutcheon v. Mannington, 1 Ves. Jun. 365; Clay & Craig v. Hart, 7 Dana, 1.

It is objected, that the will was not proved in Kentucky. But probate was not necessary to the execution of the power, and adds no force to it, for the probate has no concern with the power, and relates only to the jurisdiction over the goods and chattels. Doolittle v. Lewis, 7 Johns. Ch. R. 48; Lessee of Lewis and wife v. M'Farland et al. 9 Cranch, 151.

their trustee, the receipt of money in that character, the denial of such receipt, and the conversion of it to his own use, are wrongs which a court of equity is incompetent to redress.

[Mr. Berrien here stated and commented on the facts respecting the Kentucky lands.]

In every event, complainants are entitled to a decree for the amount actually received by Samuel Savage, and that with compound interest. It may be admitted that complainants had no title to the land which they could have enforced, that they have obtained by compromise what they could for the land; still, the money received by him was their money; it diminishes the amount which they obtained by the compromise, it was paid by the tenants of the land to him, professing to act as their trustee; it was received by him in that character, and has been converted by him to his own use, and fraudulently withheld from them. A court of equity will not permit him thus to abuse the trust which he assumed.

An executor is liable for the value of an estate sold by him without authority. Smith et al. v. Smith's Executor, 1 Desaus. 304; 1 Paige's R. 147; 6 Ibid. 355; He is liable to compound