Opinion
(December Term, 1859.)
1. Where one purchased slaves from a tenant for life, and sold them to a negro trader with a written stipulation to refund if they should be taken from him, provided he took them out of the State within ten days, it was Held that a purpose fraudulently to defeat the estate of the ulterior claimants was established.
2. The executor's assent to a legacy once given is effectual to vest the estate of the legatee, although such executor may die before proving the will or qualifying. This is the rule of the common law, and the legislation of this State has not changed it.
3. From a possession by a legatee for six years of the thing bequeathed, especially as against one purchasing from such legatee, the assent of the executor will be presumed, although after proving the will he died without qualifying or renouncing.
CAUSE removed from the Court of Equity of NORTHAMPTON.
Batchelor and Conigland for plaintiffs.
Barnes and Fowle for defendant.
Leah Gums, by her will executed in 1846, bequeathed several slaves, and among them Sarah, the mother of those in controversy, as mentioned below, to her nephew, William M. Gums, during his life, then to the plaintiff Penelope during her life or widowhood, and then to the next of kin of the said William M. Gums, to be equally divided between them. The will was proved by the subscribing witnesses at June Term, 1846, of the county court of Northampton, but the executor therein named neither qualified nor renounced, nor was there any administration with the will annexed. He is now dead. Shortly after the death of Leah Gums, the legatee was in possession of the said woman Sarah, with the other slaves mentioned in the will, and continued to hold them until 1852, when he sold them to the defendant Alanson Capehart, who kept them for a short time, and he then sold them to Alexander Nelson, a negro trader from a distant county of this State, and besides a bill of sale, which Nelson says is lost or destroyed, he executed the following paper-writing, which was delivered to the purchaser at the time of the sale and was proved by Samuel Calvert to be all in the handwriting of Capehart, viz.:
"Received of Mr. Alexander Nelson Co. eleven hundred and twenty-five dollars, in full for the purchase of four negro slaves, which (243) money I hereby agree to refund should they be prevented from proceeding to Virginia with said slaves, on condition they are returned to me, unless they should be taken from said A. Nelson Co. by process of law. The above obligation to be void in the course of ten days or more if they cannot sell them in so short a time.
"ALANSON CAPEHART."
The said Nelson proceeded unmolested to Richmond, in the State of Virginia, and there sold the slaves to a gentleman in Tennessee, and they have not been since heard of.
The bill charges that Capehart sold the slaves with an intent that they should be carried beyond the limits of the State for the purpose of defrauding the plaintiffs and defeating the estate to which they were entitled under the limitations of Leah Gums' will. William M. Gums died in 1854, and this bill was filed in June, 1855, in the name of his widow and children, and was originally brought against both Capehart and Nelson, charging a fraudulent combination, but it was subsequently dismissed as to the latter, and the prayer against the former is that an account be taken of the value of the slaves, and that the said Capehart pay the same into the office of the clerk and master to be invested for the use of the plaintiff Penelope during her life, and subsequently thereto that it be paid to her children according to the will of the testatrix. Capehart, in his answer, says that he only sold the interest of William M. Gums, and that Nelson agreed to take them on that condition. Nelson, whose answer was read in evidence, and whose deposition was taken, says that Capehart sold him the full estate in said negroes.
The cause was set down for hearing on the bill, answer, proof, and exhibits and sent to this Court.
We are satisfied by the pleadings and proofs, and particularly the exhibit annexed to the deposition of Samuel (244) Calvert which is in the handwriting of the defendant Capehart and signed by him, and amounts in substance to a stipulation that the slaves shall be taken out of this State in ten days; that Capehart sold the slaves with an intent that they should be carried beyond the limits of the State for the purpose of defrauding the plaintiffs and defeating the estate to which they are entitled under the limitations in the will.
It was objected, on the argument here, that the plaintiffs could not have a decree because the assent of the executor was not established, and the objection was put on two grounds:
1. As the executor died without qualifying, he had no power to assent.
It is settled that at common law an executor may give his assent to a legacy, and if he dies before probate or before he qualifies, it is well enough, and such assent vests the property in the legatee. 3 Bacon's Abridg., 52; 1 Wms. on Exrs., 160. So the question is, Do our statutes change the law? We think they do not. By the Rev. Code, chap. 46, sec. 9, it is provided: "When any person shall die intestate, and his estate is in such a situation as to require immediate care, any three justices of the peace may grant special letters of administration"; and section 4 provides: "No person shall enter upon the administration of any deceased person's estate until he has obtained letters of administration, under a penalty of $100." These sections obviously apply to cases of intestacy, and leave executors at liberty to take care of the estate and do all such acts before probate and qualification as it was lawful for them to do at common law. Section 12 provides: "When a testator shall appoint any person residing out of the State executor of his will, the court shall require him to give bond and security; and until the executor shall enter into such bond, he shall have no authority to intermeddle with the estate"; thus, by implication, recognizing the common-law power of an executor who resides in the State. Hairston v. Hairston, 55 N.C. 123, was the case of a nonresident executor, and is put expressly on the ground that, by force of this section of the (245) statute, such an executor had no power to give his assent to a legacy as he had not executed the bond required.
2. The assent is not proved as a matter of fact.
There is no direct evidence of an assent; but it is admitted that the legatee, William M. Gums, in 1846, soon after the death of the testatrix, took the slaves into his possession and kept them as his property until 1852, when he sold them to the defendant Capehart, who kept them until he sold them to the other defendant. From this long possession, we are of opinion an assent ought to be presumed against one who purchased from the legatee — treating him as the legal owner, and who dealt with the property on the assumption that the title had vested by force of an assent, for although there is no estoppel, strictly speaking, still it comes with an ill grace from him to attempt to defeat the claim of the plaintiffs by insisting upon a want of evidence in respect to a fact which, in his "actings and doings," he has all along taken for granted.
The decree will require the defendant Capehart to pay into the office the sum of $1,125, the price at which he sold the slaves, with interest from 1854 (the date of the death of William M. Gums), to be invested for the use of the plaintiff Penelope, who will be entitled to the interest accruing thereon during her life or widowhood, together with what has already accrued.
PER CURIAM. Decree accordingly.
(246)