#### James Thompson and Wife, Executor and Executrix of Murray, vs. Dr. J. W. Schmidt.

Tried before his Honor Judge Butler, Charleston, January Term, 1836.

Trover for negro Neptune.

This case has been once before the' Court of Appeals; but as it assumed somewhat a different character from what it did on the former trial, I will repeat the case.

Plaintiff claimed under a bill of sale from Richard Connolly, dated 23d September, 1826, and recorded 17th January, 1827. This paper conveys the negro to John Mi Murray, in trust for the sole and separate use of his wife, who Was the daughter of Connolly.. Murray died in April, 1829, having executed his will, in which he appoints his wife sole executrix.

The will gives the property to Mrs. Murray during her life; at her death, should he survive her, to his infant son Michael Murray, and should the mother survive the son, to her absolutely. So that' Mrs. Murray was sole legatee for life certainly, and should her son die be-t fore she dies, she will be the entire owner of the property. Mrs. Murray qualified on the will, the day of Murray’s'death, and in November, 1829, married Thompson, the plaintiff. At the time Thompson married the widow, Neptune did not go into his possession. Connolly seemed to have had possession of him at that time. Connolly and his son-in-law quarrelled soon after the marriage. Thompson went to the house of Connolly and took the negro into his possession; as Connolly said — by force. Thompson certainly got possession of of Neptune. He put him in the hands of Mr. Lance to sell him. Lance was examined, and said that in March, 1830, Thompson brought the negro to him, and requested him-to sell him. That he offered him for sale publicly, and Mr. Wagner became the purchaser. Wagner took the negro home, and kept him for three months. Understanding that there was some dispute about the title, he returned him. The sheriff immediately levied on him, and sold him to defendant on the 8th June, 1830, under an execution in favor of defendant *against Connolly,*for $500. This Fi. Fa. was on a confession of judgment, founded on a note, of same date of the judgment. The defeudant proved by Connolly, that the defendant had been the family Physician of Connolly from 1826, till the note was given, and that the note was given to liquidate the medical account. Defendant had his books in court, and offered them for inspection. Neptune remained in defendant’s possession until January, 1835, when Thompson, by some means, got possession of him. _ He lodged him in jail for safe keeping, and directed the jailer not to lock him up, but to give him the liberty of the yard. Defendant on same day lodged a detainer. The plaintiff never afterwards applied for the negro, because he was told by the jailer, the negro could not be delivered up on his demand, if made. On the 23d February, 1835, the action was *162commenced. On the 5th March, the negro escaped from jail, and *St*now understood to be in defendant’s possession.

With a view to avoid the statute of limitations, and to show that plaintiffs claimed Neptune, as executor of Murray’s will, they produced in evidence, Fi. Fa. against Thompson and wife, as executor and executrix of Murray, lodged February, 1831. There is yet a balance due on Fi. Fa. of $50. The judgment- was rendered on a bond of $1666. Samuel Seyle proved that he held a bond and mortgage, executed to the Fellowship Society, by Jane Murray and Richard Connolly, as guardian of Michael Murray, to secure the payment of $2000, bond and mortgage, dated 13th July, 1829. The circumstances under which the bond and mortgage were given, will appear from the following extracts of proceedings in Equity.

- Bill filed by Michael Murray,0a minor, by his *Prochein amy,*Richard Connolly, against Jane T. Murray, 13th May, 1829. The bill states that John M. Murray died, leaving considerable property — particularly a three story brick house on South Bay, valued at $5000, a wooden house in King-street, valued at $1500, some personal property, a negro girl, valued at $300. (From the inventory, the estate was valued at $7088.) By the will, filed as an exhibit, the property, both real and personal, is given by the testator to Jane, his wife, for life, and to complainant after her death, should he survive her. That Jane was appointed sole executrix, and qualified. That power is given in the will to sell personal estate to pay debts, and if that is not sufficient, then to sell the real estate. That personal estate is insufficient, consisting principally of a negro girl, valued at $300. The only considerable debt due to Samuel Saylor, of $1400, for which the three story brick house is mortgaged. That executrix can rent the house for $500 annually. If a loan could be effected, the rent of the house would pay off Saylor’s debt. The bill states that executrix cannot effect a loan, as she has only a life estate. Prayer of bill is, that the court, by a decree, will authorize complainant to join said Jane in a mortgage for said loan.

The answer admits the facts, and expresses her assent and wish, that the house should be mortgaged for the loan.

The Commissioner’s report states, that he had consulted Mrs. Jane Murray. That $480 have been expended in repairing the house— that rent is equal to $500 a year — which, although exclusively defendant’s, (Jane’s,) as tenant for life, under the will of her husband, she desires to be appropriated for the relief of the real estate. The surplus of the *loan, say*about $200, *which*will make up the $2000, it is her intention to expend in replenishing the stock in trade left by her late husband, (it seems Murray had a store.) That she is anxious to preserve the stock in the store, for the support of herself and child; that the girl she has, she wishes to retain for family purposes. If the personal property is preserved, defendant will be able to meet the demands of all the creditors of her husband, except the mortgagee, and that a loan cannot be effected without the person entitled in remainder joins in the mortgage. The report recommend* that Connolly, as guardian of the remainder-man, may be authorized *163ti> join the defendant in a mortgage, to obtain the loan of $2000. Report confirmed.

The loan was accordingly obtained, and Mrs. Murray, during her widowhood, and Thompson, after his marriage with her, have been in the entire possession and enjoyment of the real property, and stock in trade, purchased by Mrs. Murray, with the surplus of $200.

It is, perhaps, necessary that 1 should state, before I notice the legal positions which I took and maintained before the jury, that Richard Connolly, and bis daughter, to whom he gave three negroes, by a bill of sale, of same date with that of Neptune, were examined as witnesses. The purpose of the testimony, was to show that the deed by Connolly to Murray, in trust for his wife, was fraudulent. Other witnesses were examined to the same point, on both sides; and if it be necessary, their testimony can be referred to in my notes, and in the report of Judge Earle, which I send up with my report. 1 thought Connolly a competent witness to impeach the deed in a contest between third persons. What legal interest had he to support defendant’s title? Whatever interest he had in the negro, has been sold to pay his debt. The defendant purchased at sheriff’s sale, and was bound by the principle of *caveat emptor.*If he bought nothing, he gets nothing; and the money he paid, will be regarded as paid on the oldest execution in the office.

I do not exactly understand the precise objection to Mrs. Murray’s testmony. I cannot perceive her interest. But upon the question of fraud, I was rather with the plaintiff, and concurred pretty much, with the position laid down by Judge Earle, in the former trial.

The true question in this case, is on the statute of limitations. Was Thompson in possession of Neptune, before defendant purchased him at sheriff’s sale; and if he were, in what character did he have possession of him? Did he take him as legatee, or executor of Murray’s will? He could certainly have elected to take the negro as legatee. My opinion was, that the facts and law both sustained the position that he took the negro as legatee. It was certainly competent for him to have done so. I must here refer to my opinion, delivered in the Court of Appeals, for my reasons, and the general principles on which I rely. Murray’s estate, at the time of his death, exclusive of this negro, was valued at something over $7000. The exact amount of debts did not appear. The most satisfactory testimony on that part of the case, is the proceedings in Chancery, referred to above. The amount of debt was small, compared with the value of the estate. When Thompson married Mrs. Murray, how was she holding the property? It seems to me, by the proceedings in Equity, she had assented to her legacy, and should be regarded as holding the property, as legatee under the will. She had repaired a house, and had made arrangements to pay all the debts, and was in the enjoyment of the rents and profits of the houses; and selling goods in one of them — goods purchased by money borrowed on mortgage. It is said that a debt of $50 is yet due on an old judgment. That could not prevent her from making her election. Indeed, she could have made her election, at any time, in my opinion, if she had chosen to have done so. If she did not make her elec*164tion then, has she done so yet? Are Thompson, and his wife, holding the houses, and receiving the rents and profits of them, as executors, or in their own right as legatees? I think it cannot be maintained, that, because, there is yet a small debt due, they are still holding the property, as executors. It would be against the fact, and the implication of law.

“ The asseut of an executor to his own legacy, may be either expressed or implied. Such election may be implied from his language or conduct. If he say he will have it according to the will, that amounts to assent to have it as legatee. So if a term be devised to the executor for life, and afterwards to B, if he say that B will have it after him, that will imply that he took as legatee. So if by deed, reciting that he has a term foryears, by devise, he grants it over ; or if he takes the profits of it to his own use ; or if he do up the tenements at his own expense. All these indicate an assent to the legacy.” — Toller 345. Now, has not Mrs. Murray nearly done all these things before her marriage ? And if she has taken one part of the estate, as legatee, she should be regarded as taking the whole of it in the same right; or rather, Thompson should be. — “ An assent to take part as residuary legatee, is an assent to take the whole residue in the same character.” — Toller 345. When Thompson took the negro into his possession, before sheriff’s sale, he should be regarded as taking him as legatee ; and if so, he is barred by the statute. Thompson sold the negro to Wagner, without pretending to do so, as executor of Murray. He sold his interest absolutely. If it •should be decided that plaintiff was legatee, the minor’s interest in remainder will be unimpaired.

The jury found for the defendant.

A. P. BUTLER.

*Will of John M. Murray.*

*“*I desire that my personal estate be immediately sold after my decease, and out of the moneys, arising therefrom, all my just debts and funeral expenses be paid ; and should that prove insufficient for the above purpose, then,I desire that my executrix, hereinafter named, may sell my real estate, *to wit,*my three story brick house on South Bay, the lot of land and premises thereunto belonging, as also, my two story wooden house, now occupied by me as a dwelling house and grocery store, at the lower end of King-street, and out of the moneys, arising therefrom, pay and satisfy such of my debts as shall remain unpaid, out of the sales of my personal estate. *After pay, ment of my just debts and funeral expenses,*1 give to my beloved wife, Jane M. Murray, my real and personal estate, *which may remain after the payment of my just debts as aforesaid,*for and during her natural life ; and after her decease, I give the same to my son, Michael Murray, an infant; to him and his heirs forever ; but should my said son Michael, die before his mother, then I desire that my es. tate, both real and personal, should vest in my wife and her heirs, executors, administrators and assigns, forever. And, lastly, I do constitute and appoint, my said wife, executrix of this my last will and testament, hereby revoking all wills by me heretofore made. In testi-*165tnony whereof, I have hereunto set my hand, and affixed my seal, this 18th day of April, 1829.

JOHN M. MURRAY. [L. S.]

Signed, sealed, published, and declared, as and for the last will and testament of the above John M. Murray, in the presence of us, Jo. seph Dougherty, John Bryan, Stevens Pebry.”

*Grounds of*Appeal.

1. That the objections to the competency of Richard Connolly and Mrs. Murray, as witnesses, on behalf of defendant, ought to have been sustained, they being interested to defeat plaintiff’s action.

2. That his Honor erred in point of law, in his charge to the jury, in stating that an executor, residuary legatee, could assent to his legacy before payment of debts, and could make his election to take as legatee, within nine months, whereas it is respectfully submitted, the law is otherwise.

3. That his Honor erred in charging the jury, that the rights of the minor, as remainder-man, eould not be affected by a verdict for defendant in this case, whereas it is submitted, that the subject of this suit, being perishable property, a recovery of the value of the negro, converted by defendant, would better secure the minor’s interest.

4. Because there was no evidence of an actual assent by plaintiffs, to take as legatee, and none could be inferred or presumed, inasmuch as testator directed bis personal estate to be sold by his executrix, for payment of his debts, and a large amount of debts still remain unpaid.

5. Because his Honor stated to the jury, that the attempt of the husband of executrix, (made within twelve months from testator’s decease,) to sell the negro to Wagner, was an election to take as legatee, whereas such act was necessary on his part, as executor, to fulfil the direction of the will to sell the’ personal estate for payment of debts, and in point of law, the goods of testator do not vest in the husband of an executrix, and if he take them, they are applicable xo the trust to which they were subject in the hands of the wife.

6. Because the title to the negro in dispute, was clearly proved to be in Mrs. Thompson, as executrix of Murray, the said negro not having been specifically bequeathed to her, but she being, by the will, .expressly made residuary legatee of a life estate, (her son, still a minor, being remainder-man,) *only of what should remain afterpayment of debts,*and the debts of the estate being not yet paid — and the verdict should, therefore, have been for the plaintiffs, the action in this case, having been brought within five years from the conversion by defendant.

7. Because the verdict was, in other respects, contrary to law and evidence.

WM. LANCE, *Plaintiffs Attorney,*

Chancellor Johnston

delivered the opinion of the court.

The competency of Connolly, and of Mrs. Elizabeth Murray, is questioned by the first ground of appeal.

*166Connolly, on the 28d of September, 1826, for the consideration (if--100 dollars, conveyed Neptune, the subject of this suit, together with another slave, named Jim, to John M. Murray, “ for the special use and benefit of Jane Murray,” (daughter of Connolly, and wife of the said John M. Murray,) “ and the heirs of her body.” On the same day, Connolly, by a separate bill of sale, and in consideration of 150 dollars, conveyed three other slaves, Ned, Ellen and Peggy, to his other daughter, then Elizabeth Connolly, now Elizabeth Murray.

John VI. Murray, died in April, 1829, leaving a testament,of which he appointed his wife sole executrix; and she intermarried with her co-plaintiff, Thompson, in November of the same year.

Thompson, in March, 1830, having probably' for the first time obtained possession of Neptune, delivered him to Lance to sell him ; and Lance sold him accordingly to Wagner, with whom he remained about three months ; when understanding that the title was questionable, Wagner returned him.

The Sheriff immediately levied on him, as Connolly’s property, under a fi. fa. in favor of the defendant, Schmidt, against Connolly ; and on the 8th of June, 1830, sold him to the defendant.

On the 23d of Feb. 1835, the plaintiffs brought this action, laying claim to the slave Neptune, as the personal representatives of John M. Murray. v

On the trial, the defendant undertook to shew that Connolly’s bill of sale to Murray, for Neptune, was fraudulent; and to that point examiued Connolly and Elizabeth Murray.

The question is, whether they were competent to give that testimony.

The objection to Connolly’s competency is stated to be, that should Neptune be recovered from the defendant, the credit for the purchase money will be taken off his execution, and Connolly will become again, liable to its operation ; or that if the credit still remains on the execution, the defendant may resort to Connolly for the purchase money, as for so much paid for him on a consideration which has failed; and that Connolly is, therefore, interested to ward off this liability, by giving such testimony as will prevent the defendant from losing the suit.

But it seems to be forgotten, that the defendant did not purchase from Connolly, but from the sheriff; who sold only such title, better or worse, as Connolly had. There was no warranty on the part of Connolly. He was no party to the sale ; nor otherwise privy to it, than that the law authorized the sheriff to cut him off from after-wards claiming the property sold. So that the defendant is bound by the principle of *caveat emplor;*and in. casé of losing the property, *167■ can, *in law,*neither resort to Connolly for the purchase money, nor claim to have the credit taken off his execution, so as to restore its operation.

The case in New. Reports, mentioned by Phillips, (1 Phil. 52, 3; 2 New. Rep. 381) and relied on by the plaintiff’s counsel, does not make Connolly incompetent. I have not had an opportunity to consult the reporter, but the case, as represented by Phillips, was this : Goods in possession of A, were levied on by the sheriff for the debt of B. On a suit brought by A against the sheriff for the levy, and tried before a sale by the sheriff, B was held to be incompetent to prove the goods to be his, and not A’s. The distinction between that case and this, is, that before sale, the debtor has an interest to make the goods liable for his debts ; after sale, his interest is gone.

He who objects to the competency of a witness on the score of interest, must prove his interest. We have seen that there is in Connolly no *legal*liability dependant on this suit. The authorities generally lay it down,-that an interest, to be disqualifying, must be a *legal*interest. But my opinion is, that a witness is incompetent if he has an interest, whether that interest is *legal*or *equitable,*provided the interest be immediate; that is, not dependent on any extrinsic contingency. An interest is no less capable of producing bias in the witness, (which is the ground of disqualification) because it is an equitable one. Besides, a legal interest may result from an equitable liability. If, therefore, the defendant could, on being defeated here, reach Connolly in Equity, Connolly would be incompetent. But, if, Schmidt would, in case of defeat, have any equity against Connolly, it must depend on something not yet shewn. This case is clearly distinguishable from the Hamburgh cases, as every one will at first glance perceive.

The objection against Elizabeth Murray’s competency, is, that if the defendant loses Neptune, the price credited on his execution will be thereby withdrawn, and the execution may be levied on the three slaves which Connolly conveyed to this witness; and that she is interested to avert a recovery attended with such consequences. . But we have already seen that the credit will not be withdrawn, even if the defendant is defeated here.

Before I consider the other grounds of appeal, I will briefly state the reasons upon which I concurred in the judgment of this court, at the last term, ordering a new trial.

The plaintiffs sued as executors of John M. Murray, styling Mrs. Thompson executrix, and Mr. Thompson executor, in her right.

According to the proof, Thompson had reduced the plave into pos*168session, after his marriage with the executrix ; (and had even made an ineffectual sale of him) before the defendant’s conversion.

The defendant relied on the act of limitations. The circuit judge charged the jury, that if the property in the chattel converted was in the plaintiffs, as executors, in virtue of Mrs. Thompson’s executor-ship, the plaintiffs could not be barred under five years ; on account of the saving in the act in favor of *femmes comerles ;*which, (he instructed them) applied as well to *femmes comerles,*sustaining the character of trustees, and suing in a representative right, as to those who sued in their own right.

My opinion was, that the circuit judge was clearly right in holding that the representative character of a *femme comerte,*would not throw her out of the pale of the saving in the act. That although the character of a trustee is representative, the [trustee’s title to the subject matter of the trust, is a legal one purely. The legal property is in the trustee. That when a *femme comerte*executrix sues for the estate’s property, she sues for her own propertyand that it is a mere confusion of ideas, to consider that her trusteeship has any thing to do with the matter, beyond conferring the title to the property on her. And that unless the fact of being a trustee converts a *femme comerte*into a *femme sole,*she falls within the very words of the saving clause. And not only so, but every reason leading the legislature to protect married women against the bar of the statute in respect to their individual property, or rights, would apply as regards fictitious property or rights held by them ; with this addition, that giving this security in relation to the latter, is a benefit to the *cestui que trusts,*who are often subjected to disabilities themselves.

But I thought the charge was wrong in another respect. I thought 'that as the wife’s right to the property was a legal right, so was the husband’s. Thatit was a common marital right; in exercising which, he might sue for property outstanding, joining her in the action, and assuming that character for both, which alone entitled her to the property. (2 T. R. 477.) But that the property once reduced into his possession, became, to all intents and purposes, *in law,*his private property; although he must answer for it in equity. That for a conversion of such property once reduced into his possession, (although trust property) the joinder of the wife was unnecessary; and that therefore neither he nor she could claim the saving exception in the act. Just as one who unnecessarily sues as executor, when he may sue in his individual right, is responsible for costs, from which he would be exempt, if it were necessary for him to sue in his representative character.

*169I am still of the same opinion. And this expression of it will shew that I considered the question, whether Mr. and Mrs. Thompson, or either of them, had, as executors, assented to her legacy in the slave Neptune, wholly immaterial. For, granting they had not assented, and that Thompson still held as executor, (l say Thompson alone, for, as I argued in Spann and Stewart, coverture merged the wife, although a trustee,) they were nevertheless liable to be barred under five years. If I had considered the question of assent to this legacy to be the turning point in the case, on the former trial, I should have acquiesced in the verdict; believing that that question is one of fact, and not of law.

But now the case comes' up Under other' circumstances. The facts of the case have been submitted to a jury, with instructions that they were at liberty to infer an assent from' them. And the appellants now maintain the position, that, for certain reasons stated in their grounds of appeal, the executors *could not*assent.

The second ground of appeal maintains that an executor cannot assent to a legacy within nine months. The appellants are supposed to refer to that act of the legislature, which protects executors from being sued for the period just mentioned. But as the act was intended for the protection of executors, they may surely waive its benefits'. An executor may not be sued for a legacy within nine months, but he may deliver it without being sued. The authorities' are clear that an executor may, even before probate, assent to a legacy ; surely, then, he can do so at any time afterwards. (Toller 46.)

The same ground of appeal asserts, that when, by the terms of the will, the legacy is given after the payment of debts, the executor cannot assent until the debts are paid. There seems to be nothing to distinguish such a legacy from any other. By law, whether the will-says so or not, no legacy is deliverable until the debts are paid. But what follows? The executor may, if he please, deliver. He does so at his peril. As between the executor and the legatee the assent is valid. If creditors are injured, they may, in case the executor is irresponsible, pursue the legacy in the hands *cf the*legatee.

But here it is not a creditor who raises the objection, but the executor comes to complain of his own act.

That an executor *can*assent, is matter of law. Whether these’ executors *did*or *did not*assent, was a fact for the consideration of the jury, and I see nothing to induce me to say they found it without evidence.

1 do not understand the proposition laid down by the court, and described in the 5th ground of appeal, to have been laid down as *170piatter of law; but that the fact of selling to Wagner was pointed out as one from which the jury might infer an assent to the legacy.

Lance and Yeadon, for motion.

Smith, Attorney General, contra.

Filed 13th May, 1836.

With respect to the rights of the remainder-inan, it is too clear that he is not legally affected by the verdict, to admit of a doubt.

My view on that ground relating to the act of limitations, has been already stated.

My opinion, on the whole, is, that the motion should be dismissed.

J. JOHNSTON.

We concur,

HENRY W. DESAUSSURE,

JOSIAH J. EVANS,

WE HARPER,

J. S. RICHARDSON.

B. J. EARLE,