#### *Frazer’s Adm’r v. Bevill & als.

April Term, 1854,

Richmond.

i. Executors and Administrators—Assentto Legacies— Case at Bar.—Executors or administrators with the will annexed, who are legatees of slaves under the will, agree to a division of the slaves, and each takes possession of those allotted to him. This is an assent to the legacies by the executors or administrators.

а. Same—Same—In Favor of Legatee for Life—Effect upon Contingent Legatee.-To one of these legatees the slaves are given for life, and if he should die without heirs, then over to a grandson of the testator. The assent to the legacy in favor ot the first taker is an assent in favor of the contingent legatee over.

3. Suit by Contingent Legatee against Legatee for Life —Evidence—Competency of Witnesses.—In a suit by the contingent legatee against the legatee for life and a purchaser of one of the slaves under an execution against him, the other administrator is a competent witness for the contingent legatee, to prove the division of the slaves, and the assent to the legacies by the administrators.

4. Executors and Administrators Sale of Property for Debt—Right of Contingent Legatee.—The fact that the slave was sold to satisfy a debt which was originally the debt of the testator, but upon an execution issued on a forfeited forthcoming bond given by the administrator, he having ample assets in hand as administrator to pay it, does not entitle the purchaser to hold the slave in absolute property, free from the claim of the contingent legatee.

s. Equity Practice—Life Estate in Chattels Right Contingent—Legatee to Have Security for Return of Property.*—The purchaser claiming the slave and her increase as his own property, and the legatee for life never having had any children, it is the right of the contingent legatee to apply to a court of equity, and to require the purchaser to give security to have the slave and her increase forthcoming at the death of the legatee for life without, issue.

б. Executors- -Retracting Assent.—Qtderjo: When an executor may, and when he may not, retract his assent to a legacy.

*227. Setting Up in Second Suit Claim inconsistent with First,—Quaere: Whether a party may set up in a second suit, pretensions inconsistent with the alle- . gallons of his bill and his pretensions in his first suit.

.Frederick Reese of the county of Dinwiddie, died in 1829. By his will which was duly admitted to probat, after a legacy of two hundred and fifty dollars to Amy Featherston, he gave to his son Herbert Reese all his land, and one-half of the balance of his estate: *But if he should die without heirs, then at his death the land, with all the other property, should go to his grand son Frederick A. Frazer and his heirs. The testator gave to his daughter Martha Frazer the remaining half of his personal estate. Herbert Reese and Martha Frazer qualified as administrator and administratrix, with the will annexed, and gave separate bonds.

In 1830 a judgment was recovered against the personal representatives of Frederick Reese, which, principal, interest and costs, amounted to one hundred and thirty-six dollars and sixty-six cents; one-half of which was paid by Martha Frazer. Upon the execution which issued upon this judgment Herbert Reese gave a forthcoming bond with Price Pollan as his surety; which bond having been forfeited, an execution was awarded thereon, and was levied on a slave named Eliza found in the possession of Herbert Reese, and which had been a part of the estate of Frederick Reese. This slave, was sold by the sheriff under the execution, and was purchased by Archer J. Revill. At the time of this sale, as appeared by the accounts of the administrators settled by the court of probat, Herbert Reese was a debtor to the estate, after crediting him with the payment of one-half of this judgment, in the sum of two hundred and twenty-eight dollars and forty-two cents, and Martha Revill was debtor in the sum of' sixty-five dollars . and eighty-five cents: These accounts showed that the testator was very little indebted at his death.

In 1845 Frederick A. Frazer filed his bill in the Circuit court of Dinwiddie, in which he set out the will of Frederick Reese; and stated that the administrators sold the personal estate except the slaves, which proved more than sufficient to pay the debts; that the slaves were divided, as directed by the will, between Herbert Reese and Martha Frazer, and that *the slave ''Eliza fell to the share of Herbert Reese; that she had been sold to Revill and had since had several children. That Revill claimed a fee simple in said slave and her increase; and had avowed his purpose to use and control, sell and dispose of the said slaves as he thought proper; and claimed ail absolute right to them. That plaintiff was . apprehensive, and with good reason, that Revill would send the slaves out of the state, or sell them to a trader to be taken away, so that the plaintiff would be entirely without remedy upon the happening of the contingency upon which his interest depended; a contingency very likely to occur, as Herbert Reese was then, and had ever been, childless. And making Revill, Herbert Reese and Martha T. Frazer parties defendants, he prayed that Revill might be restrained from sending the slaves out of the state; that he might be required to give bond and security to have the slaves forthcoming at the death of Herbert Reese; and for general relief.

The bill having been sworn to by the plaintiff, the court made an order restraining Revill from removing the slaves beyond the jurisdiction of the court, or from anywise disposing of them until the further order of the court: And directed that unless Revill should enter into bond with good security in the penalty of eight hundred dollars, payable to the plaintiff, and with condition to comply with and perform the decree which the court might make in the cause, the sheriff should take the slaves intb his possession, and put or hire them out to the best advantage till the further order of the court.

The bond was given by Revill; and he then answered the bill. He said that at a sheriff’s sale made about the year 1830, he purchased the slave Eliza, then a small girl; that she had since had three children; and that they were all in his possession. That *the slave was sold for the purpose of satisfying debts due from the estate of Frederick Reese; that judgments had been recovered against his personal representatives, executions issued thereon, and the said slave was levied on and publicly sold to satisfy them. That it was most remarkable that the plaintiff had delayed so long to assert his right, if any he ever had; that he had no new cause, for that he must still be postponed, if he could succeed, until the life estate was extinguished. That he was advised and confidently believed, that the plaintiff had no shadow of title to the slaves mentioned in his bill, and then in possession of the defendant; and he considered himself most unnecessarily harrassed by this suit. The other defendants did not answer.

The execution under which the slave Eliza was sold, was filed, and the sheriff’s return was, “Reviedon onenegro girl, held as the property of Herbert Reese.” The deposition of the deputy sheriff who levied the execution was taken. He says he levied the execution on a negro girl named Eliza, who he was told by Herbert Reese at the time, was the property of Frederick Reese’s estate. He took her from the house and possession of Herbert Reese. That he offered the slave for sale at the June court, but that some of the legatees of Frederick Reese contended that Herbert Reese was bound for the debt himself; and that the negro ought not to be sold, as they would be scattered about at the death of Herbert Reese. That in consequence of these remarks no persons would bid, and he therefore kept her until July court, when she was again put up, and was sold. That Revill was present at the June court when *23the objections were made: No objections were made at the July court, and Revill purchased the slave at one hundred and seventy dollars. That at the sale it was publicly announced that she*was sold to satisfy an execution in favor of Martin Blake against Herbert Reese, administrator of Frederick Reese deceased.

The deposition of Martha T. Frazer, the administratrix, was also taken and filed. She said, that in February 1829 a division of the slaves of Frederick Reese took place; and in that division six slaves, one of which was this slave Eliza, were allotted to Herbert Reese. That this division was made by consent of parties; and each took possession of the slaves allotted to him and her; and that she still had hers. This deposition was objected to by the defendant Revill, on the ground that the witness was one of the personal representatives of Frederick Reese deceased.

The cause came on to be heard on the 31st of March 1847, when the court, without passing upon the objection to the competency of Mrs. Frazer as a witness for the plaintiff, dissolved the injunction and dismissed the bill. And the plaintiff having died after the decree, his administrator applied to this court for an appeal, which was allowed.

Macfarland and Rhodes, for the appellant.

J. Alfred Jones, for the appellee.

*

Life Tenant in Chattels—Security for Return of Property upon Termination of Life Estate—When May Be Required.—In Houser v. Ruffner, 18 W. Va. 251, it is said; 'I know of no law, which requires a life tenant to give security for the return of money or other property upon the termination of the life estate, unless those in remainder or reversion show such special circumstances, as call for the intervention of a court of equity by bill of *traía tunet.*Chisholm v. Starke, 3 Call 25; Holliday *et ux.*v. Coleman, 2 Munf. 162; Mortimer v. Moffatt *et ux., 4*H. & M. 503; *Frazer v. Bevill et al., 11 Gratt. 8;*Dunbar’s Ex’rs v. Woodcock’s Ex’rs, 10 Leigh 628: Weeks v. Weeks, 5 *N.*H. 326; Scott v. Price, 2 Serg. *&*R. 59.

In Bartlett *v.*Patton, 33 W. Va. 74, 10 S. E. Rep. 22 the principal case is cited as authority Cor the proposition that, now, there is no question that a life estate to one with remainder to another in personalty may be given. See, in accord, Madden v. Madden, 2 Leigh 377; Dunbar v. Woodcock, 10 Leigh 628.

Co-executors—Liability—General Rule.—The principal case is cited in Caskie v. Harrison, 76 Va. 97, as authority for the proposition that, one *oxeen tor*cannot be charged with a devastavit of his companion any iurther than he is known to have been knowing and assenting at the time of the devastavit, and merely permitting his executor to possess the assets without concurring in the misapplication does not render Mm responsible for receipts of his co-executor.

See monographic, *note*on “Executors and Administrators.”

DANIEL, J.

I do not think that the exception to the deposition of Martha T. Frazer was well taken. The fact that she was one of the administrators of her father’s estate did not, of itself, render her incompetent to testify to the assent of herself and of her coadministrator to the legacy in respect to a portion of which the suit was brought.

In the case of Smith & wife v. Townes’ adm’r, 4 Munf. 191, which was an action of detinue brought by a legatee against a stranger, for the purpose of recovering a slave bequeathed to the legatee, this court held that it was competent for the plaintiff to prove by the executor, *(if he had no objection to being examined), his assent to the legacy. I see nothing in the case under consideration to justify us in refusing to apply the same principle to the testimony of Mrs. Frazer. It is true that the recovery of the slaves in controversy from Revill would be a satisfaction pro tanto of the claims of the appellant against the administrators, for Frederick R. Frazer’s share of the estate under his grandfather’s will; and Mrs. Frazer’s testimony proves one of the important facts upon which the right to recover from Revill must rest. Still, I do not perceive that Mrs. Frazer has an}' such interest in the event of the suit as can affect her competency as a witness. For even if the appellant, in the event of his failure to recover the slaves of Revill, could be permitted to turn round and repudiate the grounds on which he sought that recovery, deny his own allegation of the assent of the administrators to the legacy, and seek to recover of the administrators on the ground of a devastavit or wrong, in improperly permitting a sale of the female slave Eliza., I do not see how Mrs. Frazer (from any fact disclosed in the'record), could be subjected to any liability. Apart from her own evidence there is nothing to show that the slave Eliza had ever been in her possession. The other evidence in the cause shows that the debt, in satisfaction of which the slave was sold, was originally a debt due by the estate. That upon the suing out of the original execution she paid one-half of the amount, and charged it to the estate in her administration account. That for the remaining half her brother Herbert Reese gave a delivery bond with Price Pollan as security, and made a like charge in his account. And that the sale was made under an execution which issued on a judgment on the delivery bond. The sheriff’s return states that this execution was levied “on one negro girl held as the property of Herbert Reese;” and in his deposition the sheriff states *that the girl “was taken from the house and possession of Herbert Reese, and that he (Reese) stated at the time, that she belonged to his father’s estate.” And it appears from the separate administration accounts, that there was, at the time of the sale of the slave, a small balance (some sixty-five dollars) in the hands of Mrs. Frazer, and a much larger balance (some two hundred and twenty-eight dollars, after taking credit for the half of the original execution), in the hands of Herbert Reese, arising from sales of the personal estate of the testator. In this state of facts, if there was any devastavit, or wrong, or illegal conduct, in allowing the sale of the slave for which a representative of this estate might be called to account, the liability therefor rested with Herbert Reese alone. He held the possession of the slave, and his office of administrator gave him a right to that possession; and if he permitted it to pass from him, so as illegally and injuriously to affect others, without the knowledge or assent of Mrs. Frazer, no damage or loss arising therefrom can be visited upon her, it being well settled that one administrator cannot be charged with the wrong of his companion, or be made further liable than for the assets which came to his hands. Peter v. Beverley, 10 Peters’ R. 532; Morrow’s adm’r v. Peyton’s adm’r, 8 Leigh 54.

The decision of the suit could therefore neither increase nor diminish her liabilities, let it eventuate as it might, and she stood indifferent between the parties.

She states that in 1829 the slaves belonging to her father’s estate were divided between her and her brother; and that, in the division, the slave Eliza was (with others) allotted to her brother Herbert Reese. That the division was made bjT consent of parties, and that she and her brother each took possession o£ the slaves allotted to them respectively. In Drayton *24v. Drayton, 1 Desau. R. 557, executors who were residuary legatees divided the estate of their testator between *them. It was held that this was equivalent to payment of the legacies, and that the executors severally held their shares as legatees simply. This is precisely the case here; and the division in 1829 is, I think, equivalent to the most formal assent to the bequests to Herbert Reese and Mrs. Frazer. And it is well settled that an assent to a particular interest is an assent to the bequest over. 2 Lomax on Ex’ors 130; Lynch v. Thomas, 3 Leigh 682. And in the case of Acheson v. McCombs, 3 Ired. Ch. R. 554, it was decided that when by a will personalty is given to one, with remainder to another upon the happening of a certain event, and without any trust in the executor, the assent of the executor to the immediate legacy is an assent to the bequest in remainder; and such bequest becomes a legal' estate upon the happening of the contingency.

The division of the slaves in 1829 operated then, as I conceive, as an assent by the administrators to the executory limitation in favor of Frederick R. Frazer; and I do not see how his title could be divested by sale under an execution issued, whether against the goods and chattels of Herbert Reese, or against the goods and chattels of the testator Frederick Reese.

It is argued that it is competent for an executor under certain circumstances to retract his assent to a legacy: And that Herbert Reese, by representing to the sheriff when he made the levy, that the slave belonged to his father’s estate, and by suffering her to be sóidas such, must be taken to have retracted his assent, so far as this slave is concerned, and to have consented that she should be sold as the property of the estate. In a suit brought by Herbert Reese to recover this slave, such an argument would be entitled to much consideration, if indeed it would not be conclusive against his right to recover. To permit him to recover from a bona fide purchaser under such circumstances, *would be to allow him to derive benefit from his own fraud. But the

argument, as applied to the rights of Frederick R. Frazer is, I think,, without force. It seems to be true, that whilst as a general proposition an assent once given to a . legacy can never afterwards be retracted, there are exceptions to the rule: As when the assent has not been completed by payment, in the case of a general legacy, or possession, in that of a specific one, and its recall is not attended with injury to a third person, as to a bona fide purchaser from the legatee on the faith of such assent, it is said, that it is only reasonable, that the executor, under particular circumstances, should have the power of retracting it; as when he assents upon a reasonable ground for considering that the assets are sufficient to meet all demands, but unknown debts are unexpectedly claimed, which occasions a deficiency. 2 Williams on Ex’ors 849. It is obvious, however, that not one of the reasons on which the exception is based exists for applying the exception here, so as to affect the rights of the legatee in remainder. The division of the slaves in 1829, as before stated, was accompanied by immediate possession on the part of Herbert Reese; and that possession enured at once to the benefit of the legatee in remainder. And Herbert Reese, so far from being met by an expected deficiency of assets, in fact held in 1 is own hands a large balance, more than ample to satisfy the execution. No retraxit of his assent to the legacy could, therefore, have divested the title of Frederick R. Frazer. It is to be observed also that whilst from the deposition of the sheriff it would seem that he, at the sale, regarded the execution under which he sold as one against the estate of the testator, and treated the girl as the property of the estate, the execution was, as before stated, in fact against the goods and .chattels of Herbert Reese and his surety in the delivery bond, Price Pollan, and the return states *a levy on the girl as the property of Herbert Reese. Whatever may have been the impressions of the sheriff, at the time of the sale, as to the legal effect of the process under which he was acting, or as to the title of the property sold to satisfy it, I think it clear that under the circumstances the purchaser could acquire nothing but the interest of Herbert Reese in the slave: And consequently, that Frederick R. Frazer had such an interest in the slave Eliza and her increase, as to, entitle him, upon alleging and showing just cause to apprehend danger of their being eloigned, so as to jeopard his recover of them when the time for the enjoyment of his legacj'should arrive, to ask and have such orders in chanceiy as would be likely to insure the forthcoming of the property, on the happening of the contingency provided for in the will.

The counsel for the appellees, whilst he objected here to the jurisdiction, did not seem to lay much stress on the objection, his main argument being directed to the question of title; and all objection to the want of power in the chancellor to act on the case made, is, I think, met and answered by the decision of this court in the case of Chisholm v. Starke, 3 Call 25. In that case, the testator bequeathed his slaves to his wife, remainder to her children. The wife married again, and the second husband sold one of the slaves to a bona fide purchaser, who had no notice of the right of those in remainder; and he, before receiving such notice, sold the slave to another person. The bill filed by the remaindermen in that case did not allege any purpose on the part of Chisholm to remove the slaves out of the state. It simply alleged that Richardson the second husband hajl frequently endeavored to sell the slaves as his absolute property; that he had sold one of them to Chisholm, who lived at a distance in the state; that he had attempted to sell others; and pre*25tended that the increase of the ^slaves was his. The chancellor decreed that Richardson should *give*bond, conditioned for delivering- to the plaintiffs the slaves in his possession and their increase, living at the death of his wife, and that Richardson and Chisholm should give bond for delivering the slave which had been purchased by Chisholm. Upon an appeal by Chisholm, this court reversed so much of the decree as required the bond of him, on the ground of his having stated in his answer, which was not disproved, that he was a fair purchaser for valuable consideration, without notice of the title of the appellees, and had sold the slave before suit brought, and before any notice of the appellee’s claim to or interest in the said slave; and ordered that the bill should be dismissed as to him, but decreed that Richardson should give bond for the forthcoming of all the slaves. The court evidently regarded the conduct of Richardson, in setting up an absolute title to the slaves, in selling one of them, and threatening and endeavoring to sell others, as ground sufficient to justify the requiring of a bond from him for the delivery of the property on the termination of the life estate; and exonerated Chisholm, on the ground only of his being a purchaser without notice, and of his having sold again before suit or notice of the title of those in remainder. The conduct of Herbert Reese, in permitting the slave to be sold under the circumstances shown in the case, was such, I think, as to have justified the court in requiring a bond from him; and with respect to Revill, there is an absence of all the circumstances which induced the court, in the case of Chisholm v. Starke, to excuse the purchaser: He does not in his answer deny notice of the division of the slaves, and of the claim of the appellant’s intestate : He does not deny having avowed the purpose (as charged in the bill) to use, control and sell and dispose of the slaves as his own absolute property : He does not deny that the appellant 'x'had good ground for believing that he would send the slaves out of the state. In his answer he simply states that the slave Eliza was levied on and sold to satisfy executions against the estate of Frederick Reese, and that he purchased her at1 the sheriff’s sale, and denies that the plaintiff has any title whatever to the slaves ; refers to . the delay of the plaintiff in asserting his right, and saj's that he has no new cause, as he must, in any event, still be postponed until the life estate is extinguished. Independent of his failure to deny notice of the claim of the appellant, in his answer, the testimony in the cause renders it highly probable that he did have knowledge of the claim, and he is still in possession asserting right to treat the property as his own, free from all limitation.

I think that the Circuit court erred in dismissing the bill; and ihat it ought, instead thereof, to have made a decree defining the rights of the appellant in accordance with the foregoing views; and to have made such orders as were necessary to insure the forthcoming of the property On the happening of the contingency provided for in the bill.

The other judges concurred in the opinion of Daniel, J.

The decree was as follows:

It appears to the court that in February 1829 the slaves of the testator Frederick Reese were, by consent of the parties, divided between the appellees Herbert Reese and Martha T. Frazer; and that in the division the female slave Eliza was allotted to the said Herbert Reese. And the court is of opinion that said division operated as an assent by the administrators to the bequests in the will, as well in favor of Frederick R. Frazer as of the said Herbert Reese and Martha T. Frazer; and that the facts alleged in the *bill and proved by the evidence, were such as to entitle the said Frederick R. Frazer to ask and have from the appellee the said Herbert Reese, and the appellee Revill, bond -with sufficient security and in a proper penalty, conditioned for the forthcoming of the said slave Eliza and her descendants, on the happening of the contingency in the will of the testator mentioned: And that the Circuit court consequently erred in dismissing the bill. So much of the decree of the 31st day of March 1847, therefore, as dismisses the bill, is reversed with costs, Ac. And the cause is remanded for further proceedings in conformity with the principles above declared.