P. A. F. Nunn, by next friend, v. Charles Owens

P. A. F. Nunn, by next friend, v. Charles Owens. 'The words of a will, to wit, “ I want Ira H. Hardin to attend to my business as executor,” malie the said Ira H. Hardin the executor and not the trustee of the property. In an action of trover, brought by a legatee to recover from the purchaser the value of a slave (part of the legacy) sold under an execution against the executor, the residuary legatee, under the same will, was held to be a competent witness for the plaintiff, to prove the assent of the executor to the legacy. The declarations of an executor are competent evidence of the fact of his assent to' a legacy. The assent of an executor to a legacy is rendered unexceptionable, when he retains enough from the estate to pay the testator’s debts; and the legal effect of the assent is to vest the legacy in tire legatee and place it beyond the executor’s control, and also to render void the sale of such legacy under an execution against the executor. Before Mr. Justice Evans, at Chester, Spring- Term, 1847. Abner Lee, by his will, dated 1st August, 1839, bequeathed a negro woman named Less, and her children, Maria and Sarah, to the plaintiff. The balance, after paying his debts, he gave to his wife. The will contains this provision: “that Less and her children should be hired out until” the plaintiff came of age; also, “ I want Ira PI. Hardin to attend to my business as executor.” The testator died a few days after, and Hardin qualified as executor. In 1842, judgments were obtained against Hardin as executor, under which Maria, one of the negroes bequeathed to the plaintiff, was sold by the sheriff, and purchased by the defendant. This was an action of trover, to recover her value, on the assumption that the executor had assented to the legacy, by which assent the legacy vested in the legatee, and was from thence not liable to be seized and sold under an execution of a later date than the assent. There seemed to be no doubt that the executor had funds to pay all the debts. The widow of Abner Lee sold a tract of land to raise money to pay the debts, out of which Hardin received $300, which he said was more than enough. The fund thus provided, the executor misapplied or squandered, and has left the country insolvent. In 1845, by his direction, Maria was levied on by the sheriff, to satisfy the executions of Walker and Douglass, the latter a small debt of about $20, and the former for $290. It was to pay this .latter debt that Mrs. Lee said she sold her land, and gave the executor the proceeds, $300. At the same time the negro was sold there was also sold a tract of land, which brought $161. On the question of assent, and the time of the assent, there was a good deal of evidence. The plaintiff was an infant, and the grand-daughter of Mrs. Lee, the widow of the testator, and lived with her. There was no doubt that about 1841, on some interference of the ordinary, Less and her children were given up to Mrs. Lee, to be hired out by her. At first Hardin was to have the hire paid to him, and he did receive it the first year, as he said, to pay the debts; after that he set up no claim until 1845, when he told the defendant, who had hired Maria from Mrs. Lee, that he must pay the hire to him; Mrs. Lee hired the negroes out in 1841, 1843, 4 and 5 — she kept them herself in 1842. The two last years Maria was hired to the defendant, in whose possession she was when levied on by the sheriff. ■ At the time Hardin received the $300 from Mrs. Lee to pay the debts, he said it was enough, and the hire was, after that, to go to the plaintiff. About the time of the levy, Hardin denied there was enough received by him to pay the debts, But so far as the evidence showed, he had received more than enough to pay. Mrs. Lee said the $300 was given to Hardin six years ago, which would carry the. time back to 1841, which was anterior to the lodgment of the executions. The Presiding Judge. I instructed the jury, that a creditor had a higher claim- than a legatee, and might sell any part of the estate, real or personal, to satisfy his debt. Until this was done, or a fund provided for the payment of the debts, the executor could not, consistently with his duty, assent to a legacy of a specific chattel. But where such fund was provided, there was no legal impediment to his delivery of the specific legacy to the legatee, and if he did so in good faith, the specific chattel could not be levied on to satisfy an execution which had no lien anterior to the assent. I explained to them what would amount to assent on the part of the executor, and submitted to them to decide on the evidence, whether Hardin had given up the negro to Mrs. Lee for the plaintiff, discharged from all claim on his part as executor ; and if such delivery had been made, was it anterior to the time when the executions were lodged in the sheriff’s office in May and November, 1842. The jury were admonished that the plaintiff’s right to recover depended on the assent, and that this should be fully and satisfactorily proved. They found for the plaintiff. On the notice of appeal, I have only to remark, that the 2d ground for a non-suit was not noticed at the trial, and therefore my attention was not called to it. The defendant appealed, and moved the Court of Appeals for a non-suit and a new trial, on the following grounds: For a non-suit. 1st. Because there was no legal evidence of the assent of the executor, Ira H. Hardin, to the legacy. 2d. Because, by the terms of the will of testator, Abner Lee, the executor, Ira H. Hardin, was appointed a trustee to hold and hire out the negroes willed to the plaintiff, until she should arrive of age. 3d. Because there was no legal evidence that the executor had funds or assets in his hands to pay the debts of the estate, as that could only be shown by the records or returns to the ordinary’s office. _ For a new trial. 1st. On all the above grounds taken for a non-suit; 2d. Because Mrs. Nancy Lee was an incompetent witness. 3d. Because the plaintiff had not acquired a legal title to the negro sued for, at the time the executions Were issued under which she was sold. 4th. Because Ira H. Hardin was a competent witness for the plaintiff, and therefore his declarations were incompetent. 5th. Because the negro was liable for the debts due by the testator at his death, and the executor, who w.as proved to be utterly-insolvent, could not, in good faith,'assent to .the legacy, until he had paid the debts, even if he had, in truth, ample funds in his hands, which did not appear, as that would operate as a fraud upon the creditors. 6th. Because the verdict is contrary to law and evidence, and the charge of the Judge. A. W. Thomson, for the motion. Gregg, contra. [MAJORITY — Richardson, J.] Richardson, J. delivered the opinion of the Court. The words of the will, to wit, “ I want Ira H. Hardin to do my business as executor,” make him the executor very plainly, and not the trustee of the property. 2dly, The fact of the executor’s assent to the legacy, is well settled by the verdict; and 3dly, The legal effect of such assent to vest the legacy in the legatee, Nunn, and place it beyond the executor’s control, and also to render void the sale of the legacy made under an execution against the executor, after such assent, are the very points adjudged, unanimously, in the case of Alexander v. Williams, 2 Hill, 522. But to render the assent unexceptionable in this case, the executor kept more than enough to pay the testator’s debts, and could not recall his assent and divest the legatee. This disposes of the merits of the case. 4thly, therefore — Was Mrs. Lee a competent witness? Mrs. Lee was the residuary legatee, and to say the least, could not be interested to pass any part of the testator’s property to the plaintiff, but rather interested — if either way, to defeat the claim of the legatee, Nunn. Mrs. Lee was therefore a competent witness for the plaintiff, because she was either entirely disinterested, or she testified against her own interest. Lastly — As to the declarations, &c. of Ira H. Hardin, to prove his assent to the legacy, he was the executor, and of course the legal owner of the personal estate of his testator, Abner Lee. This is settled law, and fully recognized in the case first cited. It follows, that his declarations, divesting himself of Maria, are his acts or acknowledgment that he had passed Maria to the plaintiff, and operate of course as his bill of sale, or rather act of divestiture and transfer of property by the legal owner. His declarations on that head were therefore competent evidence of the fact of his assent to the legacy. The motion is therefore dismissed. Evans, J. Wardlaw, J. Frost, J. and Withers, J. concurred. Motion dismissed.