The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-03-16

No. N-li'i.I
Theodore i. Lewis, Aimsni~,rat5r IS. Martha Lusk.
This action was brought by the defend
ant in error to recover the hire for certain
slaves alleged to be her property. and
which had been in the possession and en-
ployment Of the intestatc Of the plaintiff
in error.
The case turned upon the question:
whether one of the slaves. and the only
one for which hire was claimed on the
trial, was the property of the defendant
in error or the plaintiff intestatc.
1t appears that the slave had been the
property of John Lusk. the husband Of
defendant in error. and the father of the
plaintiff : intostatc. Robert Lusk: and
that John Lusk died many years ago intes-
tate in the State OF South Corolina. in
possession OF the slave. and that no adj
ministration had been taken Of his estate.
nor any division thereof between his wild
ow and the plaintiffs inteState Evil
dence was adduced in support Of the ac-
ton tending to show that Robert Lusk
had admitted or acquicsced in the title of
the plaintiff below to the slave. The
plaintiff below then offered in evidence
the inventory OF the personal property Of
Robert Lusk. returned to the Probate
which showed that the slave in question
was not returned as part of the intes-
tate's estate. The defendant objected to
its Introduction; but the objection was
ovcrrutcd. and the inventory permitted
to 20 in evidence.
The purpose for which thi, evidence
was offered, was to show an act of the adj
miuistrator involving an admission that
the slave was not the property of his in
te~tate, to conclude the estate hy a mere
act of omission of the administrator
We consider it manifest that the evidence
was inadmissiblc.
An administrator has no authority to
convey the personal property of an estate
such as slaves even by his positive act
except in the manner pointed out by law
much less will the rights of the estate he
concluded by his mere omission to do his
duty. This would be the case If it were
shown that he was cognizant of all the
facts in relation TO the property in cues
ton. For il might be doubtful whether
the property belonged to the estate. and
he might not be willing to receive respon-
Sibilitv for it by returning it in his inven-
tory when in fact il might not belong to
the estate: or he might commit an error
of judgment in acting upon the belief
that it did not belong TO the intestate.-
His failure to assert the right or to set up
the title of the estate. could not. there.
fore, operate to the prejudice of its rights.
In certain cases, which, form their nature.
called for a justification of his action. he
may bind the estate by his positive act
as in the case of Duncan vs. Watson, 2S
Miss: but these cases arse from the pc
culiar circumstances and nature of the
act done, and from exceptions to the gen
eral rule. But an estate cannot be pre-
JUDGED or estopped 10y the mere silence
of the administrator, or by his omission
to adopt title or to do an act in relation
to it, interest. Magee vs. Gregg. IL II.
NJ. 70-77; Woods vs.. Ridley. - Miss.
l49.I There may be exceptions to this
rule. and the defence of the statute of
limitations, in virtue of which, tide has
been perfected by possession. appears to
be one: but the omission of the admins
traitor here relied on does not constitute
an exception. and the evidence was i'm
properly admitted.
Judgmentreve and cause remand
ed for a new trial. HANDY.