Gilmer's Legatees v. Gilmer's Executors. the face of them, the legacy is worthless and fails. If it gives such bonds to the value of twenty thousand dollars, it is impossible of performance, and therefore fails. 1 Jar. on Wills, 681, 682. It is said that the legatee here, is the brother and one of the heirs of the testator; that it was natural for the testator to provide for him out of his abundant estate; that he showed his intention to do so, by giving a legacy in a certain class of bonds when they were of value, and that the intention of the testator will be defeated under our decision. It must be granted that the intention to provide for the legatee is defeated by the annihilation of the value of the bonds, but it is not for a court employed in the construction of a will to make one conformable to some vague conjecture of what the testator would have done, had he survived the annihilation of the value of the bonds. It is only our province to construe or declare what wills mean. We conclude this branch of the case, by announcing the decision that the legacies in Confederate bonds herein before mentioned fail, and that the legatees take nothing on account thereof. 2. The second class of legacies to be construed are those in railroad bonds. The legacy in favor of Elizabeth Gilmer, in the second item, of twenty-five thousand dollars of certain bonds which the testator held, is specific, and should be paid out of bonds of the estate of the specified character without abatement. The several legacies to Eliza F. Gilmer, Samuel Spence, and Elliot H. Muse, mentioned in the 8th, 19th and 20th items, "of five thousand dollars in railroad bonds," are general legacies, and are to be paid in full, and any deficiency for that purpose in the quantity of such bonds belonging to the estate, must be supplied by the executors out of the general assets of the estate. This decision is supported by the arguments already produced in reference to the legacies in Confederate bonds. 3. A third question applicable to a single legacy arises under the 12th item of the will. By that item there is bequeathed to William J. Adams, twelve thousand dollars in notes, in which his own is to be included. At the time of making the will, the testator held a note on the legatee, and afterwards and before his death gave it to him. The Gilmer's Legatees v. Gilmer's Executors. transfer of the note would have adeemed the legacy to that extent; a fortiori will it be thus far adeemed by a transfer by gift to the legatee ?-2 Redfield on Wills, 528. This legacy must be abated by the amount of the note given by the testator to the legatee. 4. The bequests in the 13th, 14th, 15th, and 22d items of the will give legacies in notes or Confederate States bonds, at the option of the executors. Confederate States bonds being worthless, these legacies must fail at the option of the executors. The courts will not interfere with the exercise of a discretion.-2 Sugden on Powers, 161. The legatees are not entitled to payment in notes unless by the choice of the executors. The legacy to John W. Akers in 16th is to be paid in notes to such extent as the executors may determine. 5. The bequest for the erection of monuments to the memory" of Gen. Stonewall Jackson, of Virginia, and Col's. Thomas Cobb and Bartow, of Georgia," are valid. The bequest "for assisting to raise monuments to the memory of all other officers and soldiers from the State of Alabama who distinguished themselves, or those who have died from wounds or were killed in defense of their country, in the present war between the United States and the Confederate States," is void on account of the impossibility of its performance. The bequest contemplates the erection not of a single monument, but of monuments to the memory of the persons described taken singly.-2 Roper on Legacies, 1238, 1244; 2 Redfield on Wills, 769, 832; Potter v. Chapin, 6 Paige, 639. BYRD, J., concurs in the conclusion attained by the court, but as to some of the questions, does not concur in the reasoning by which the court sustains its decision. Reversed and remanded. Oxford Iron Company v. Spradley. 24 96 463 24 102 500 42 24 128 281 OXFORD IRON COMPANY vs. SPRADLEY. [ACTION ON PROMISSORY NOTE AGAINST MAKER.] 1. Corporation; what will sustain judgment by default against.—In an action against a corporation, a return by the sheriff on the summons and complaint, that he had executed the same "by delivering a copy to G. A., managing agent for the defendant," is not sufficient to sustain a judgment by default. APPEAL from Circuit Court of Calhoun. Tried before the Hon. JOHN HENDERSON. THIS suit was brought by the appellee against the appellant, and was commenced on the 16th of January, 1866, by summons and complaint. The sheriff's return on said summons and complaint was in these words: "Came to hand same day issued; executed by delivering a copy to Genatus Roberson, managing agent for the defendant, this 17th day of January, 1866." The following is a portion of the judgment entry made in the cause in the court below. "This day came the plaintiff by his attorney, and the defendant being solemnly called, came not, but made default; and it appearing to the court by the return of the sheriff, that the summons and complaint were on the 17th January, 1866, executed by the sheriff, by delivering a copy of the same to Genatus Roberson, managing agent for the defendant, it is therefore considered," &c. The appellant sued out an appeal to this court, and assigned the following errors: 1. The defendant in the court below was not before the court, by service of process or by appearance. 2. The record does not show service on any person to be served. liable 3. The record does not show any service that authorizes the rendition of judgment. JOHN T. HEFLIN, for appellant. FOSTER & FORNEY, contra. Frazer's Executors v. Lee. BYRD, J.-This case must be reversed upon the authority of the following decisions of this court.-Planters' & Merchants Bank of Huntsville v. Walker, Minor 391; Lyon et als. v. Lorant & Krebs, Adm'rs, 3 Ala. 151; Wetumpka & Coosa R. R. v. Cole, 6 ib. 655. We are satisfied that a mere recital in the judgmententry of the return of the sheriff does not relieve this case from the influence of the decisions cited. Such a recital is not equivalent to a judicial ascertainment of the facts necessary to sustain the judgment by default. It does not appear by the record that the appellant had an appearance entered in the court below. Judgment reversed and cause remanded. FRAZER'S EXECUTORS vs. LEE. [BILL IN EQUITY TO SET ASIDE SALE BY ADMINISTRATOR.] 1. When answer to bill in Chancery will be taken as true.-When an answer on oath is not waived by the plaintiff, and the cause is heard on bill and answer, the responsive allegations of the answer are to be taken as true. 2. When an Administrator may purchase at his own sale.-An administrator may purchase at his own sale, if he has an interest in the estate, provided the sale is fairly conducted; but if he has no interest in the estate, he stands merely as an ordinary trustee, and his purchase is liable to be set aside at the option of the beneficiaries seasonably expressed. APPEAL from the Chancery Court of Montgomery. THE bill in this case was filed on the 29th November, 1865, by William Lee and James Lee, both infants, suing by their next friend, against Allen Frazer and Mildred R. Frazer, his wife, and sought to have set aside the sale of certain real and personal property. The material allega Frazer's Executors v. Lee. tions of the bill were, that complainants were the children of John H. Lee, who being an inhabitant of the county of Montgomery, in this State, died intestate, some time in the year 1860, leaving a large estate, both real and personal, and that their mother, said Mildred R. Frazer, (then Lee,) took out letters of administration and qualified as administratrix of his estate, and early in 1862, intermarried with Allen Frazer, and with him administered on the estate of said John H. Lee, deceased, and on the 11th December, 1862, sold the personal property of said estate, and duly reported the sale to the probate court of Montgomery county, with the names of the purchasers and the prices of the articles sold, set down; that their father died seized and possessed of certain lands, particularly describing them, situated in said county, and that certain lands were assigned to their mother as her dower interest, and that afterwards the residue of the lands belonging to their father's estate, was, upon the petition of said Allen, as administrator as aforesaid, sold by order of the probate court of said county, for a division between said complainants and their sister, who died before the filing of this bill, being of tender age; and said lands were purchased by the said Allen, and that said sale was afterwards confirmed by said court; that the said Allen had not, at the time of said sale, any interest whatever in said lands, either in his own right, or in the right of his wife, and that the sale and purchase thereof by said Allen was a fraud upon complainants. The prayer of the bill was, 1st. That the said sale of the realty be set aside, and that an account of rents from the day of sale be taken. 2d. That the sale of personalty in each case, in which said Allen was purchaser, be set aside, and as the same has been consumed, or greatly impaired by use and time, that he be held liable as in trover. 3d. That the administration of said estate be removed into said chancery court, and that the settlements made in the probate court be set aside and the accounts restated, and a prayer for general relief. An answer under oath was not waived. The defendant, Allen Frazer, in his answer admitted substantially the above allegations of the bill, except a slight discrepancy in the description of the lands sold by |