#### *Elizabeth Holladay et al.*vs. *James C.*Holladay, *adm'r.*

Where a party had held an undisturbed possession of a female slave, for ten years previous to his death, and his adminisirator took possession of a female slave, by virtue of his administration, and continued the possession for one year, and then hired her to and ther, who set up a claim to her: it was held, that the administrator was bound to account for the value of the slave, at the time of her loss, to the estate of his intestate, and interest thereon.

*Before*Johnson, Chancellor,

Sumter,

*January*Term, 1841.

This bill was originally filed by the complainant, Elizabeth Holladay, in her own name, against the defendant, the administrator of her deceased husband, William Holladay, as far back as 1820, for an account and partition of his estate, and at-Term, 182- an order was made, that a writ of partition should issue, and that the defendant should account. At-Term, 182-, the commissioner’s report, on the accounts of the personal estate, was confirmed; partition was also made of the personal estate, but the commissioners for partition recommended a sale of the land, and no sale having been made, the cause remained on the docket, until 1836, when, by an order of the Court, the complainants, the children of the intestate, were made party complainants, and the defendant was ordered to account over and beyond the former accounting.

On accounting before the commissioner, these complainants set up a charge against defendant, for two negroes, Abbey and her child Grippa, for which, it is conceded, he had not before accounted — which, they allege, were the property of the estate, and had been lost to it by the negligence of the defendant. Whether these negroes did, or aid not belong to the estate, is the only question remaining in the case.

From the report of the comm’r. it appears, and the fact has not been controverted, that Abbey descended from a female slave, called Cressa, who belonged to one William Pearson, and the will of Williám Pearson is referred to in the report, as the first link in the title, from which these complainants derive their claim. In this will, Pearson, gives to his wife, Dorcas, amongst other negroes, a woman *280called Lucretia, who is ascertained to be Cressa, the mother of Abbey, which is followed in the same clause by the following limitations. “ But, if my said wife, Dorcas, should die without lawful issue, (except that she has by me,) it is my will, that the negroes above named, should return to my estate, for the use of my son, James Pearson, or the heirs hereafter named.” This will' is dated 24th February, 1783, and was admitted to probate on the 6th December, of the same year.

Dorcas, his widow, afterwards intermarried with Michael Birch, who died, in 1808, having first made his last will and testament, by which he gave to his wife the plantation, on which he lived, for life, remainder to Wm. B. Brown, and one half of his personal estate to dispose of as she might think proper, the remaining half of his personal estate, he gave tobe equally divided, share and share alike, between the complainant, then called Elizabeth B. Kingdom and Wm. B. Brown, with cross remainders, over, in the event of either dying without issue; and following these dispositions is this clause: *“Item,*it is my desire, that all my property shall be kept together on the plantation, whereon I now live, undivided, for a support for my dear and loving Avife, Dorcas Birch, and my two dear little orphans, Elizabeth Birch Kingdom and William Birch Brown, until after the death of my dear and loving Avife, Dorcas Birch,” his widow, Dorcas, Avas appointed executrix, and Wm. R. Man, and John Lemons, executors ; she alone qualified.

On the 4th October, 1808, and after the death of Michael Birch, his widow, Dorcas, by deed of that date, in consideration of love and affection, for her son, James A. Pearson, gave to his children, by his wife Elizabeth, (without naming them,) seventeen negroes, of whom Cressa, the mother of Abbey, Avas one. Dorcas Birch, afterwards, married one Bergamy, and removed to Alabama, where she was living in 1839, and it is not knoAvn, that she is -now dead.

On the part of the complainants, it was proved, that the complainant’s intestate, Wm Holladay, got possession of Abbey, under some contract with James A. Pearson, in 1808 or 1809, who gave a bill of sale for her, which has *281been burnt or destroyed, the precise terms of which are not known, and kept possession of her, until his death in 1819, that she then went into the possession of defendant, as administrator of Holladay’s estate, who kept possession of her for one year, and then hired her to James A. Pearson, who kept her until 1827, when she was sold at sheriff’s sale, as his property, and purchased by one Nelson, at $400. It also appeared, that on the death of the complainant’s intestate, in 1819, the children of James A. Pearson; to whom Mrs. Birch conveyed, were minors.

On recurring to the will of Wm. Pearson, there cannot be a question, that the limitation over, of the negroes, to James A. Pearson, on the death of Dorcas, the widow, without issue, was void for remoteness, and that Dorcas took an absolute property in them, (for the doctrine on this question, I refer to *Treville vs.*Ellis, 1 Bailey, Eq. Rep. 40, and *Adams vs.*Champlin, 1 Hill, ch. 268.) It follows that they became the property of Michael Birch, on his intermarriage with her, and that he had the power of disposing of them, by will.

He, by his will, directs that all his property (including of course the negroes,) should be kept on his plantation, undivided, until the death of his widow, as a support for her and the complainants, Elizabeth Holladay and Brown, and the possession of them by the executors, until that event should happen, was necessary to the execution of that trust; the right of possession, therefore, abided in them-, and the intestate could acquire neither the right of property or the right of possession, under any contract, with James A. Pearson. So that the right of the complainants rests entirely on the possession of the intestate, and they rely on the statute of limitations as a bar to all other claims; and this leads to an inquiry into tiie character and effects of that possession.

The defendant insists that the statute would not run, because the legal property and its right of possession was in the children of James A. Pearson, (all of whom were minors, at the time of the death of the intestate,) by the deed of Dorcas Birch. By the terms of Michael Birch’s will, she had a right to a support in common with complainants, Elizabeth Holladay and Brown, and to dispose of *282one half of the negroes after her death. These rights, she had the power to dispose of, and I suppose that, so far as the negroes were concerned, all her rights, both to subsistence and property, passed under her deed to Pearson’s children; but she had. no power to dispose either of the right to subsistence or the right of possession and property, which would accrue to the complainant, Elizabeth, after her death.

The deed included all the negroes of which Birch died possessed, but one, and that one is not accounted for. It may have died, or have been otherwise disposed of, and if, as I suppose, Dorcas Birch’s right, of usufruct, passed under the deed to Pearson’s children, they were only entitled in common with complainants, Elizabeth and Brown. If a conjecture, in the absence of all proof, would be justifiable, it would not be unreasonable to conclude, that Pearson, acting for his children, delivered Abbey to the intestate, as a commutation for his wife’s right to subsistence, out of the common property. In that case, if his possession was rightful, he had a right to retain it until the death of Mrs. Birch.

After the hearing, a fact came to my knowledge, which, although not evidence in the case, comes in a form not to be questioned, and I mention it here, merely as presenting, in the true light, the alternative that I should have assumed, viz: that the possession of the intestate was tortious.

In the lifetime of the intestate, James A. Pearson filed a bill in this Court, against the intestate, in which he sets out an agreement between them, by which the latter agrees to sell, and the former to buy complainant’s, Elizabeth’s, interest in this estate, at $1,000, for which he gave his bond. This bond is credited with a negro girl, at $333 66 1-3 cents, who is supposed to be Abbey. Although no name is given, the object of the bill was to compel the intestate to deliver, to Pearson the possession of the property, or to refund the money he had received; and Chancellor DeSaussure, who tried the cause, dismissed the bill on the ground, that there was no undertaking on the part of the intestate, to deliver the property, and under the cir*283cumstances, which were known to Pearson, he could not deliver it.

If the record in the case referred to be true, or if, in the absence of that, it is not shown that Pearson had the right of property or possession, he could confer none on the intestate, and his possession was, necessarily, tor-tious.

Who was affected by that possession, is a question which necessarily arises — or, in other words, who could maintain an action against him *%*Clearly, not the children of Pearson — for if the estate had been abandoned by the executors, the intestate, in the right of his wife, might have taken possession of it, and he had a right to maintain it against any one else. The rights of Pearson’s children were at law, in common with his own, and all they could demand of him, was a participation in the profits, and then they would be bound to account for any profits they might have derived from the estate from other sources. There was, therefore, no time at which they could have brought trover or detinue, nor even now, unless Mrs. Ber-gamy be dead, and these rights could not affect the operation of the statute as to others.

It has been before shown, that the executors of Birch were entitled to the possession, for the purpose of executing the trust reposed in them, and it follows that they, and they alone, could maintain trover or detinue. If, therefore, the possession was rightful, there was no cause of action, and if wrongful, they are barred by the statute, as they were not under any legal incapacity to sue. On the death of Mrs. Bergamy other questions may arise, but it is unnecessary to anticipate them now. It is sufficient to observe, that under Mrs. Birch’s deed, Pearson’s children will be entitled to one half of the negroes, and the complainants, Elizabeth and Brown, to the other half.

In assuming the administration of an estate, the implied undertaking is, that he who assumes it, is competent to the duty, and will discharge it faithfully. In virtue of his ad« ministration, he is entitled to the possession of all the personalty of which his intestate died possessed, or was entitled to. If, therefore, any thing is lost to the estate, by his ignorance or negligence, he is bound to account for it. It *284may happen, that his intestate may be in possession of property, which belongs to another, or in which he had only a temporary interest; and in such case, the administrator would be justifiable in delivering the property to the rightful owner, without putting him to his suit to recover it; but in doing this, he assumes the burthen of showing, in the settlement of his estate, that the property did belong to another, and that nothing was lost to the estate. He ought, however, as a security to himself, never to part with the possession of property, of which his intestate died possessed, except in the due course of administration, when the right of property is doubtful, except under the authority of a Court of competent jurisdiction, for the reason, that the burthen of showing that the property possessed by his intestate, was notin him, rests on him.

The rules apply with all their qualifications, and in all their force, to the prosecution of rights, claimed by the intestate, not reduced to possession.

In the case in hand, the intestate had had possession of Abbey, for ten years before, and up to the time of his death. She went into the possession of the defendant, on administration granted him, with his other personal estate ; he hired her to James A. Pearson, as the property of the estate, who never returned her, and so far as appears, the defendant never, by action, or suit, or otherwise, attempted to regain the possession or recover her value.

It has been before shown, that the possession of the intestate protected him under the statute of limitations, against the claim of the executors of Birch, and that they, alone, were entitled to sue; consequently, that he was entitled to the possession, until after the death of Mrs. Bergamy. This right is lost to the estate, and whether through the ignorance or negligence of defendant, he is equally culpable.

It is, therefore, ordered and decreed, that the defendant do account before .the commissioner, for the hire of Abbey, and of her issue and increase, if she have any, from the time he took possession of her, until the day of taking an account, unless it shall appear, that Mrs. Bergamy is dead, and if dead, up to the time of her death — and if not dead, *285that he do account before the commissioner annually, for the hire of said negro or negroes until her death.

The defendant, James C. Holladay, appeals from the decree of theChancellor in this case, and moves the Court of Appeals for a reversal thereof, on the grounds:

1. Because the title to the negroes in dispute, was, at the death of the intestate, William Holladay, in the children of James A. Pearson, and therefore, the defendant ought not to be charged with them or their hire, as belonging to the estate of the said William Holladay.

2. The conveyance from the executrix, Dorcas Birch, to the children of James A. Pearson, was an absolute legal title to the negroes, and not a transfer merely of her interest, as legatee under the will of Michael Birch.

3. If the conveyance, by the executrix, were not, of itself, sufficient to transfer the title to the children of James A. Pearson, yet the intestate, William Holladay, and the complainant Elizabeth, his wife, having sanctioned it, by subscribing as witnesses thereto, and the said intestate having proved it before a magistrate, are, with all claiming from them, estopped from setting up title in opposition thereto.

4. The legal title, by virtue of the said conveyance, being in the children of James A. Pearson, who were minors, the intestate could not acquire a title against them by.possession; he therefore had no title which could have been maintained by his administrator.

5. That the decree of the Chancellor is, in other respects, against equity and justice.

The complainants, the children of William Holladay, the intestate, the only parties, complainants, interested in the question before the Court, appeal from the decree of the Chancellor on the grounds following, to wit:

1. Because, as the Chancellor, admits in his decree, that the executors of Birch were entitled to the possession of the slaves, the adverse possession of intestate for ten years, and the possession of defendant,-his administrator after his death, gave the intestate perfect title under the statute.

*2862. That, by the will of Michael Birch, the intestate, in right of his wife, had an interest in one fourth of the personal estate of the said Birch, and the Court, from all the circumstances, should have presumed that the said negro was one included in his said fourth.

3. That if the executrix, Mrs. Dorcas Birch, did not assent to said legacy, the long possession of intestate was adverse, and gave a good title under the statute.

4. That the Chancellor erred in introducing into his decree testimony not submitted at the trial, or referred to in the argument, to wit: the record of *James*Pearson, *vs. the intestate.*

5. That the Chancellor erred in stating in his decree, that the deed of Mrs. Dorcas Birch was executed after the death of her husband, Michael Birch, when it is respectfully submitted, there was no such proof.

6. That the whole course of the defendant, in reference to said negro and her issue, manifested such negligence, as renders him liable for their value to complainants.

7. That the decree, in other respects, is against equity and justice.

*Curia, per*Johnston, Chancellor.

It is not doubted, that Michael Birch was entitled, to the slave, Cressy, and that hiii widow, Dorcas, who alone qualified as executor of his will, was vested with the legal title of her testator, not only as to this slave, but as to Abbey, (or Sabina,) who was born before the testator’s death.

Mrs. Birch conveyed these two slaves; among others, to the children of James A. Pearson, by deed, dated the 4th of Oct. 1808. In this deed, she does not profess to make the ,conveyance as Exec’x., but if she was in fact, Exec’x. at the time, it has been sufficiently settled, that, notwithstanding her omission to recite her authority, her act shall be refer-ed to every power of disposition, with which she was clothed. Her power as Exec’x., to dispose of the property of her testator, was more extensive, than is now allowed to Exec’xs., under the Act of 1824. At the date of her deed, a conveyance by an executor vested the title in the grantee ; liable only to the equity of the legatees, to follow the *287property in bis hands, and subject it to the trusts of the will, provided he purchased with notice of the trusts, or took as a mere volunteer. In this case, the children of Pearson took as volunteers ; but this can make no difference here, because, in fact, the legatees have never sought to affect them, with a constructive trust; their remedy, in that respect, is now barred, and the title of Pearson’s children is perfect in equity, as well as in law. If therefore, Mrs. Birch was competent, at the date of her deed, to make the conveyance, there is no doubt that it conferred upon the children of Pearson, a full title to Abbey, who was included in the instrument, by the name of Sabina. There is some reason, however, to doubt whether Mrs. Birch was not, at the time, a married woman. Her husband’s will is dated in the latter part of 1807, and was not admitted to probate, until some short time after the deed was executed. There is no positive evidence in the case, as to the time of Birch’s death. But the plaintiff, Mrs. Holladay, who was a subscribing witness to the instrument, was examined as a witness, for the defendant in the case, and stated that it was executed before Birch’s death. This is the only evidence in the case; and, if the witness was credible, it establishes, not only that Mrs. Birch was not executrix, when she made the deed, the testator being still alive, but that she was a *feme*covert, and that the instrument was, therefore, an absolute nullity. But whether we take the deed to have been good, and to have vested a title in Pearson’s children, or to have been void, and that the title remained unaffected, and upon the death of Birch, accrued to the executrix, it appears to us, can make no sort of difference in the case. Supposing the title to have been in the executrix, independently of the incapacity of the defendant to shield himself under a title, which has never been practically enforced against him — upon which I shall say more hereafter — it is sufficient to observe, that the Court is satisfied, that that title was barred by the long-possession of the defendant’s intestate. The intestate obtained possession of Abbey, from James A. Pearson, who had no sort of title to her. The supposition that she was placed, in the intestate’s hands, in lieu of his wife’s usufructuary, interest in Birch’s estate, is entirely conjectural. We have *288no traces of any such bargain, nor of Pearson’s authority to make it. There is no evidence of any privity, between the executrix and the defendant’s intestate, in the transfer which was made by Pearson, to the latter. We have the bare fact, that the possession was changed; but no knowledge of the terms upon which this was done. The legal conclusion must be, that the intestate obtained .possession for himself, and held for himself. And as the ■executrix, in whom we have supposed the title to be, did ■not disturb him until she was barred by the statute, we must hold his title to have been perfected. Then, supposing the title to have been in the children of Pearson, who, on account of their minority, were not barred in the intestate’s lifetime, the Court is of opinion, that it is not competent for the defendant to set up this title against his *cestui que trusts.*His intestate died in the actual possession of the property ; and the defendant came into possession in his right. The title which he now sets up as paramount, has never been enforced against him. And if he has lost the property entrusted to him, as administrator, it was not by virtue of that title, but by his own negligence. If he had been evicted, that would have been a good defence. But it would be against justice, as well as against law, to allow a trustee, when called upon to deliver the thing confided to him, or account for it, to except to the title under which he obtained possession, and hunt up an outstanding title, in order to show, not that he had been, but that he might have been, thereby deprived of the trust property. The negro was sold as the property of Pearson, to whom the defendant as administrator, had hired her. Against Pearson, his bailee,' he had an indubitable right of recovery; without the possibility of his setting up any other title. The rule is clear, that a bailee cannot resist the title of his bailor. The defendant had a good right of recovery, also, against the sheriff and against Nelson, to whom the sheriff sold the negro. The one levied on Pearson’s right, and the other bought it: and without deciding that the sheriff or the purchaser, might not have gone further than Pearson, and set up a title in Pearson himself, which the latter, as bailee, could not do ; it is very clear, ■ that the administrator had a *289light to recover against all the world, but the real owner; which, upon the supposition, that the title was in Pearson’s children, would have insured his remedy against either of these two. Having lost the property entrusted to him, by his omission to pursue these remedies, and having shown no reason why he did not resort to them, he must account for the property, at its value, at the time of the loss sustained, with interest thereon.

And it is ordered, that the circuit decree be modified, accordingly.

J. JOHNSTON.

We concur.

B. F. Dunkin, Wm. Harper, David Johnson.