*Abbeville.*

Heard before Chancellor Desaussure.

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#### B. T. Saxon and wife, *vs.*Joseph Barksdale and J. C. Garret.

Demurrer overruled by the answer.

An executor has no right to sell a specific legacy, unless ther debts of the testator require it; and least of all to pay his own debts. The statute of this state makes it necessary for executors to apply to the Court of Ordinary to sell personal estate.

An executor having an interest in part of the legacy, does not authorize him to sell more than his own share.

The statute of limitations will not run in favor of a purchaser for valuable consideration, who had knowledge of the rights of the parties, nor where he held as tenant in common, and during the minority of the other party.

An account decreed.

JUNE, 1814.

The bill of complainants states in substance the following case *

That Elizabeth Barksdale, in the year 1798, made her last will, and bequeathed two slaves, named Dick and Lett, to her two nieces, Martha arid Polly Barksdale, The testatrix named her brother-in-law,!. Barksdale (father of the two nieces) executor of her will, and died soon after, leaving her will in full force. Polly Barksdale, one of the legatees, died an infant, and her sister, Mrs. Saxon has administered on her estate. Joseph Barks-dale proved the will and qualified thereon ; took possession of the two slaves, Dick and Lett, and sold the ipap Dick at private sale to J. C. Garrett, and received *523the, purchase money, which he has applied to his own use. It is alleged that Mr. Garret had seen the will, and had full information of the title which Barksdale had to the said slave. That Garret was requested soon after the sale to return the said slave Dick, and receive another from Joseph Barksdale in his room, as the complainants had a legal claim to the slave, or part of his value. But Garret refused to do so.

B. T. Saxon married the legatee, Martha, in Oct, 1812, and demanded of Garret an account and distribu» tive share of the value of said slave, and an account for his hire and labor_The bill prays for general relief.

The will of Mrs. Eliza Barksdale was made an ex* Mbit, and it is comprized in a few words.

It bequeaths two slaves, Dick and Lett" to her sister’s two children ; and it appoints her brother-in-law executor. Several answers were put in. The administrator of Polly Barksdale answered that there were no assets, and no debts of that estate. The answer of Joseph Barks-dale admits the will and probate, as alleged by the bill of complainant. Also, that he qualified as executor, and took possession of the slaves. That Polly and Martha, bis two daughters, were the nieces and legatees of Mrs. .Eliza Barksdale, and that Polly died soon after the testatrix, under age and *intestate;*and that he, the executor, pawned or pledged the slave Dick for the sum of g200 to Mr. Garret, in whose possession he remained and worked for the use ofthe said money about 7 or 8 years, at the end of which period he sold the said fellow to Mr. Garret for $416. He admits that he sold the slave for his own private advantage', as he conceived he had a right to do so, having acquired by the death of his daughter Polly an interest in the said property, to the amount as he believes ofthe value of Dick *;*and that he delivered to his daughter Martha, the girl Lett, as her right and property, and has never claimed her since. That at the time lie first pledged Dick to Mr. Garrett, he was of more value, than the woman Lett; hut at the time of the sale, Leif having a child, they were equal in value to Dick *¡*
      *524and she has had four children since, who are all. in coni-l)lainant’s possession.

James Barksdale also answers, that he does not know whether, at the time he pledged the slave Dick to Mr. Garret, the latter knew that the negro was bequeathed to defendant’s children j but that at and before the actual sale, it'was made known to him *;*the defendant having produced to him a copy of the will, and informed 3him of the death of his daughter Polly, whereby he derived his claim to the said property. Defendant after the sale, sent word to Garrett to return the said slave and to receive another in his room, for the reason stated in the bill, which he refused to do.

The defendant Garret demurred to the bill on the ground, that at the time he purchased the slave Dick, the said Barksdale had a right as executor to sell the said slave Dick, to discharge the debts of the testatrix; also* that at the time of the purchase of the slave Dick, Polly Barksdale one of the legatees was dead, and her father thereby entitled to an interest in the said slaves, Dick and Lett.

Mr. Garrett also answered the bill, and admitted that bo purchased the slave Dick, from Joseph Barks-dale, executor aforesaid, having previously loaned him money. That defendant cannot say how much of the money loaned, or of the amount of the purchase was applied to the payment of the debts of the testatrix, Eliza Barksdale, or to the maintenance of the legatee, Martha Barksdale, during her minority, and before her marriage. But he believed at the time be made the purchase, that the said Joseph Barksdale was authorized under the will to sell said slave, as there were debts due and owing by the testatrix, as he was informed and believed. That the defendants had the slave Dick in’ possession *7*or 8 years, on pledge, before, he purchased him absolutely; and that he knew nothing o *i the*claim .of complainants until long after he had loaned the money, nor until the lime of the purchase, anil was then informed of the-death of Polly and of the claim of Joseph Barksdale, and knew of no other method of obtaining the money originally *525loaned. That in the event of sufficient power to sell as executor, the interest which J. Barksdale had acquired in the slaves Dick and Lett, and her increase by the death of Polly Barksdale, was fully equal to the value of the man Dick, to wit, 8416, which was the sum the defendant paid for said man.

There was no evidence given in this case; but it was agreed that the testatrix, Eliza Barksdale, owed no debts of any importance $ and that there bad been no partition in this case,except that Mr. J. Barksdale voluntarily delivered the woman Lett to his daughter, then a minor, and kept Dick to himself.

We must take up the demurrer in this caso in the first .instance. I have no hesitation in overruling it, for* the demurrer assigns for cause, matter which forms part of the ground of defence, on the facts of which the* defendant can Lave ihe full benefit on the hearing, as well or better than on the demurrer. Besides, this is a speaking demurrer, and it is also followed by an answer which overrules the demurrer. I now go into the merits of the case.

This is a suit brought by a legatee-for the recovery ®f her share in the slave Dick, specifically bequeathed to her and her sister j but sold by the executor to the defendant, Mr. Garret, for a Ml consideration.

II' the executor had a right to sell tljis personal chattel, specifically bequeathed, there is an end of the question, and Garret had a right to purchase, and to keep the slave.

This question has been a good deal agitated, and de~.. cisions apparently contradictory have been made, it certainly seems that the case of Savage and others vs. Humble, decided by the House of Lords in 1703, (reversing the decision of the Court of Equity, as reported in 2 Vcvn. 444,) did deny the executor the power to sell or mortgage the specific legacy, unless expressly to pay debts where other assets were wanting. See 1 Bro, Par. Gas. 71. But this decision of the House of Lords is strangely said to have, been overruled by the Master of the Bolla in Ewer and Corbet, 2 Is. Wins, ¿48, followed *526by several other eases; such as Elliot and Memman* decided by tbe Master of the Rolls, in 1740, reported in 2 Atk. 41, Nugent *vs,*Gifford, 1 Atk. 463, decided by the lord Chancellor, both of which were cases of ere-dito vs, and not of specific legatees. So in the case of. Mead and Orrery, decided by lord Hardwicke in 1745, reported in 3 Atk. 235. This was the case of residuary *legatees;*'and there the lord Chancellor recognizes the distinction between residuary and specific legatees. The lord Chancellor concludes, that as the executors had the legal right, as there is no color of fraud, and as two of the executors who had no interest in the assignment joined in making it, and as there was a purchase far a valuable consideration, there is no pretence to set asido the assignment in favor of residuary legatees. See p, 244 of the x-eporter. In Langley *vs.*Earl of Oxford, reported in Amb. p. 17, decided by lord Hardwicke, in 1743, he was of opinion that a specific legatee of a mortgage should not be prejudiced by a settlement made by the executor with the mortgagor; hut the case of Ewer and Corbet being cited, he paused, and we hear no more of the case. Two cases are reported by Brown in his Chancery Cases, one of them is Scott and Tyler $ 3 Bra. C. C. 431, in which one of the questions made, was whether an equitable assignment of a specific legacy, by an executor for his own private debt was effectual against* the legatee. It was much argued by the counsel, and the cases examined and sifted ; but when the court was about to give its opinion on that point, it was stated that a compromise liad taken place. The other is the case of An-drewsm Rigley,4 Bro. C. G.¿425, decided by tho-Mastcr of the Rolls ; and to be sure that judge did decide on the circumstances of that case, that an executor or administrator-may, when there are debts, sell the testator’s term, specifically devised, and the court would not relieve, even under some suspicious *circumstances;*but the court relied, expressly upon the great length of time and long possession by the purchaser. All these cases, however, turn upon the executor’s power over the personal estate of the .testator, to dispose thereof as he pleases, where there is-. *52700 fraud. The. lord Chancellor puts it on that ground in Nugent and Gifford, and Ithel and Beane ; so in Scott *vs.*Tyler, 2 Bro. C. C. 478, and 4 Bro. C. C. 136. But even with this strong leaning to support the authority of the executor, as to the personal estate, there is a disposition manifested, to shake those acts where tainted with the least appearance of *unfairness;*and the INI aster of the Bolls expressly says, in, Andrews *vs.*Bigly, 4 Bro. C. C. 136, that it is no where decided, that the executor can.sell a term specifically devised, for his own debt.

I apprehend that our law stands upon a different _ footing from the English law. It does not attribute to the executor or administrator the absolute power to dis-% pose of the estate of the testator or intestate. On the contrary, by an act of the legislature, of March 1789,’ it is enacted, that when it shall be requisite to make sale of any part of the personal estate of testator, or intestate, either for a division, payment of debts, or to prevent the loss of perishable articles, application shall be made to the court of the county, or ordinary, as the case may be, where the will was recorded, or administration granted $ whereupon such court may refuse, or grant such order for sale, regulating the time, place and credit to be given in such manner, as to do impartial justice to all persons interested therein.

This law manifestly intended to take away that absolute power of the executor or administrator over the property of the deceased, which he before held, and obliges him to consult and be guided by a court of justice, to warrant his selling any part of the property, even perishable articles. It is not pretended that Mr. Barks-dale, the executor, applied for, or obtained power from the ordinary of the district to make the sale he did, and the will gives no power to sell. He then acted without authority, and his act is void ; and there was no reasonable ground for him to sell a property specifically her-queathed, even if he had continued to hold the general power; for no debts of the testator are shewn to have existed to make a sale necessary. Mr. Barksdale sayo *528in bis answer, that be does not know whether the money paid by him was applied to pay any debts of the estate oi* the maintenance of the legatees. But he does not shew that any debts existed, and the father was not at liberty to sell the legacy of his child, in order to maintain her. He was bound to maintain the child out of his own funds, As far as appears the money was received by the executor, and applied to his own use. There is not a tittle of proof of the application of a cent of it to the payment of any debts of the testator $ nor has Mr. Garrett the excuse that he did not know that the property was specifically bequeathed to the children. The presumption is, that he was informed, as he was intimate with the parties and lived near them. But the will was notice to all the world *;*and being recorded in' the district, was accessible to him 1 and his answer admits that about the time of his purchase, he knew of the situation of the property, and bought it to make himself whole, for money previously loaned to Mr. Barksdale. But it is said the executor on-the death of one of the legatees intestate, became entitled to a moietv in the share of that child so dying, whence his power to sell is inferred. He certainly did acquire the interest stated ; but the consequence does not follow, which is insisted upon; he might sell his own share, but not the share of the co-legatee.

It was insisted that a-partition has been made, and that the man slave he sold to Mr. Garrett, fell tó his share; and that he. could sell him. But no legal partition was made, and the minor could.not assent to any. It was solely the act of the executor.

It was insisted for defendant, that he has had possession long enough to give him title, under the statute-But this is not so, for the long possession of seven or eight years, was merely a loan or hiring, to pay hnnsclf by the labor of the slave for the $200, loaned by Mr. Garret to the executor. He did not then claim the negro as his own, nor till a recent purchase. . Besides, the complainant, Mrs. Saxon was a minor, and the statute-muid not run, and he held after th,e purchase a moiety, *529•which was Barksdale’s share, as tenant in common with the legatee, who was entitled to the other moiety.

It was added, that there was a remedy at law, and that complainant should have gone there for relief. She is suing to establish and recovera legacy, and this is the proper court for her to come to; and she asks an account which she is entitled to. As the slave appears to have been sold at a fair price, I will not set aside the ,sale, merely to set him up at a new sale.

It is therefore ordered and decreed, that the defendant do pay to the complainant one halt the amount of the purchase money agreed to be given for the slave Dick, and also interest thereon, from the time of the salo, and that the costs be paid by defendant.