#### GEORGE HILBORN *vs.*EPHRAIM HESTER.

Although a husband is entitled exclusively to administration on his wife’s estate, yet he cannot recover, as administrator, a *chose in action,*for which he had received full satisfaction previously to the grant of administration, unless it appears there are debts due from the wife’s estate, and then an account will bo directed.

So, if he has, intentionally, and with his privity and concurrence, permitted another to receive the amount of such *chases in action*of his deceased wife.

Cause removed from the Court of Equity of Bladen County, at the Fail Term, 1851.

*56John Hester died in 1819, in Bladen, having made his will, in which he made the following dispositions: “ I will, that my wife, Comfort, live on the plantation her life time, and also my negro, Jane, to wait on her for her life time ; and that she be maintained out of the whole of the property. I give to my daughter, Plannah, a negro girl named Clarissa, and the balance of my negroes to be equally divided between all my children, except Hannah.” He also left several tracts of land, which he devised to his different children, who were nine in number ; and he appointed the defendant, his son Ephraim, the executor, and he proved the will. One of the children was named Mary, then the wife of the present plaintiff. In February, 1820, the executor and the other children divided the slaves, and other effects, except Jane, and the others, including the plaintiff gave to the executor an obligation, in which they acknowledged they had received their shares of the estate, and bound themselves to pay their proportions of any demands against the estate. Not long afterwards, but at what particular day does not appear, the plaintiff’s wife died leaving an only child, named Eliza, very young. The executor assented to the legacy of Jane to the widow, who kept the slave in her possession on the plantation for eight or ten years, and until Jane had two children. Then a person took the two children, and Mrs. Hester brought detinue for them, and on the trial of the suit, the present plaintiff was introduced as a witness for her, and on objection to his competency, on the ground of his interest in the slaves, he swore that he had none, and that the share, to which his deceased wife, had been, entitled, then belonged to his daughter, Eliza, and thereupon, he was examined in chief, and the negroes were recovered. Yery shortly afterwards, J^frs. Hester, having become very old and infirm, was taken by her son, the defendant, to his house to reside, and she *57carried the three negroes with her, and she afterwards lived in the defendant’s family, and was maintained by him until her death in 1837. In 1832, the plaintiff was arrested by a creditor, and took the oath of insolvency in Bladen, without filing any schedule, and soon afterwards, procured one Richard Lewis to be appointed the guardian of his infant daughter, Eliza, and then he removed to Alabama, and carried his daughter with him. After the death of Mrs. Hester, Lewis claimed on behalf of his ward, a share of the negroes and some of the old furniture left by Mrs. Hester, and by the consent of the defendant, and of the other children of the testator, who were living here, he, Lewis, administered on the estate of Mrs. Hester, and sold Jane and her two children, as his. intestate’s property, for the sum of $1528, and in 1840, he paid the sum of $50 as the share of the said Eliza, after deducting the charges to Lemuel J. Lucas, who resided also in Alabama; and had intermarried with the plaintiff’s daughter, Eliza. The plaintiff after-wards came into this State, and obtained administration of his deceased wife’s estate, and filed this bill in September, 1847, praying for an account of the residue of the testator’s estate, and, particularly, of the profits and proceeds of the sale of Jean and her children.

The answer states, that the defendant assented to the legacy of Jane, and thereby the property in her vested in the widow for her life, and the remainder vested in the ■children, except the testator’s daughter Hannah ; and thereupon insists that the defendant was not bound to take possession of the slaves as executor, after the widow’s death. It further states the facts already mentioned in respect to the plaintiff’s denial of his own right to a share of the negroes, and his declaration, and other acts, showing, that it was his daughter’s, and it avers that the money, paid to Lucas, was so paid, with the knowledge and consent of the plain*58tiff, for the share of the slave originally belonging to the plaintiff’s wife. It further states, that Mrs. Hester became so infirm as to be incapable of labor, and the negro woman and her children also became expensive, and that the defendant was thereby induced to take them to his house and maintain them there: and it is insisted that, if the defendant be held liable to account to the plaintiff at all, there ought to be a proportional allowance for the expense of maintaining the mother and her negroes.

Ruffin C. J.

It need not be considered, whether the particular provisions of the will take the case out of the general rule, that an assent to a legacy for life is also an assént to one in remainder: because upon other points the opinion of the Court is with the defendant.

The circumstances render it probable, that at the division in 1820, there was an agreement that, instead of setting apart a fund for the maintenance of Mrs. Hester, she should have the whole property in the slave Jane. That supposition accounts naturally for the plain till’s twice renouncing on oath any interest in her, and for his thinking that his daughter would succeed to some interest under her grand mother, and therefore procuring, before he left the State, the appointment of a guardian for her here, who might, upon die death of the grand mother, get his daughter’s share. Ifut, whether that be so, or not, — and the answer does not insist on it — those circumstances and the other evidence establish it as a fact, to the satisfaction of the Court, that a full share of the value of Jane and her children was received by the plaintiff’s son in law, as the share of his wife, with the privity and consent of the plaintiff, and in fulfilment of his intention and the understanding of all concerned, long existing. The fact, we think, cannot be doubted: especially, when the plaintiff delayed for seven years to administer and bring suit after -the mon*59ey had been received by a member of his family, resident in the same part of the country with him It is true, that, upon the death of the plaintiff’s wife, her administrator alone legally represented her, so as to be entitled to her share of the negroes: and it is also true, that payment to one not entitled will not excuse an executor from the demand oí the proper person. Yet the force of the defence here set up is not thereby impaired in this Court. For, if the payment had been to the plaintiff, the surviving husband, he could not, by afterwards taking administration, compel the executor to pay him a second time, because in fact the administration would be for his own benefit exclusively, and as soon as he got the money as administrator, he would hold it to his own use: which he could not justly do, with the money already in his pocket. If there were any probability that there were any debts of the wife, there might be a reason for an enquiry as to the amount, and for a decree for enough to satisfy it. But, after a *feme covert*has been dead about thirty years, without some suggestion to the contrary, it may be fairly presumed there is no demand against her estate. The defendant, indeed, says, he might assert a charge on it for a contribution towards the maintenance of his mother in her last years: but that he prefers, only, as a deduction from the plaintiff’s recovery, if he should make any in this suit. The plaintiff is, there-forej suing exclusively for his own personal benefit: and he could not recover, if the money had been actually paid to him before he administered. In effect that was done : for, if he assigned his claim to his daughter or, without an assignment, if he was intentionally the cause of the payment being made to her or her husband, and it was made with his privity and concurrence, it is the same as if the money had gone into his own hands. The plaintiff would not, indeed, be concluded by the settlement made by the *60son in law, but might have an account, so as to charge the defendant with a further sum, if he could. But it was admitted on the hearing, that everything had been settled between these parties, except the plaintiff’s demand on account of the three slaves : and, as that is but a single item, and its amount clearly shown, and the payment of his- proportion of it to Lucas fully established, there is no necessity for any enquiry, but the bill must be dismissed with, costs.

Per Curiam. Decree accordingly.