Weldon, J.,
delivered the opinion of the court:
This is a claim to recover $1,393.26, under the provisions of the act approved August 5, 1861, entitled "An act to provide increased revenue from imports to pay interest on the public debt, and for other purposes," and the act entitled "An act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes," approved July 7, 1862.
The findings show that the fee-simple of lot C, block 90, in the town of Beaufort, S. C., on the 13th of March, 1863, was in William H. Cuthbert in trust for Mary W. Rhett for her life, with power in her to appoint the same by will to and among the issue of her marriage with Edmund Rhett.
On said day the said land was sold for direct taxes, and bid off by the United States for the sum of $1,500. The proceeds of said sale over and above the tax due thereon and all charges were $1,393.26. No part of said money has ever been paid to any person. Cuthbert, the trustee, and Mary W. Rhett died in 1873.
Mary W. Rhett left a will, which was duly probated, in which it is provided, after certain bequests are paid, that—
"Should any property be returned by the United States Government or remuneration made therefor, ' I direct the same be invested by my son Stuart as trustee for the benefit of my daughter Anne/
The claimant and said Stuart were appointed to execute the will, .but the latter refused to enter upon the execution of the trust. The estate is not settled, and but one-half of the legacy has been paid to Stuart Rhett. A suit is pending in this court by Stuart Rhett as trustee of Anne S. Elliott to enforce against the defendants the right of his cestui que trust.
The only contention is as to who shall recover, the defendants insisting that the claimant as executrix is the party entitled to the surplus of the sale.
We hold that the legal cause of action is in the claimant; and whatever equities there may be between the parties, they must be adjusted in a jurisdiction having control of the subject-matter of the controversy incident to the rights of the parties under the will of Mary W. Rhett.
It is therefore adjudged that the claimant recover from the defendants the sum of $1,393.26.