#### PENELOPE GUMS AND OTHERS *against*ALANSON CAPEHART.

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.

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. '

Prom 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.

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 ldn 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, lie 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 the year 1852, when he sold them to the defendant, Alanson Oapehart, 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 hand-writing of Oapehart, yj;z:

“ Received..- of Mr. Alexander Nelson & Co., eleven hun*243■dred and twenty-five dollars, in full for the purchase of four negro slaves, which 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 he 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.

Alansow Capehaet.

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 Oapehart sold the slaves with an im tent that they should be carried beyond the limitsof the State, for the purpose of defrauding the plaintiffs, and defeating the •estate to which they are entitled under the limitations of Leah Gums’ will-. William M. Gums died in 1854, and this bill Was filed in June, T855, 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 Oapehart pay the same into the officé of the clerk and master, to be invested for the use of the plaintiff, Denelope, during her life, and subsequently thereto, that it be paid to her children, according to the will of the testatrix.— Oapehart 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, say, that Oapehart 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.

*Batchelor*aud Ooniglancl, for the plaintiffs.

*Barnes*and *Bowie,*for 'the defendant.

SPeaesojst, O. J.

We are satisfied by the pleadings and *244proofs, and, particularly, the exhibit annexed to the deposition of Samuel Calvert, which is in the hand-writing- of the defendant, Oapehart, 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 Oapehart 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. Bacon’s Abridg. 3 vol. 52; 1 Will’s on Ex’rs 160. So the question is, do our statutes change the law?— We think they do not. By the Rev. Code, ch. 46, sec 9, it is provided, “when any person shall die intestate, and bis 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: “Ho 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, *residioxg 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, recognising the common law power of an executor who resides in the State. *Hairston*v. *Hairston, 2*Jones’ Eq. 123, was the case of a non-resident executor, and *245is put expressly on the ground that, byforce'of this section of the 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 to the other defendant. Erom 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 allhough there is no es-toppel, 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 $1125, 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 wddowhood, together with what has already accrued.

Pee Cdheam, Decree accordingly.