The assent of an executor must be obtained before a legatee can
take possession of a legacy. But this assent may be implied, and an
assent to the interest of the tenant for life in a chattel inures
to vest the interest of the remainder. Therefore, where a bill
averred the possession of the subject of the legacy by the life
tenant in pursuance of the bequest in the will, and this bill was
demurred to, it is sufficient to raise a presumption that the
possession was taken with the assent of the executor.
By the laws of Virginia, where there is a tenancy for life in a
slave, with remainder to the wife of another person, the interest
of the husband in the wife's remainder is placed upon the footing
of an interest in a chose in action. If, therefore, he survives the
wife, he may reduce the property into possession at the expiration
of the life estate, but if he be dead at such expiration, the
property survives to the wife, and on her death passes to her legal
representative as part of her assets.
Query whether the husband or his personal representative is not
bound to administer upon the wife's estate before bringing suit to
recover property so situated in the State of Virginia.
Where there was no direct or positive averment that the
defendants, or either of them, had any interest in the property
claimed or that it was in their possession, no ground of relief
against those parties was shown, and the right to a discovery as
incidental thereto failed also.
The object of the bill was to reclaim the possession of certain
slaves and to compel an account and compensation for the value of
certain other slaves, all of which were alleged to be the property
of the complainant and appellant, in his character of
administrator.
The facts were these:
In 1797, one Elizabeth Edwards, an inhabitant of Northumberland
County and State of Virginia, by her last will and testament,
bequeathed to her daughter, Sarah Nutt, a certain negro girl named
Lavinia, a slave for life, with her future increase, for and during
the life of said Sarah Nutt, and at her death to Elizabeth
Fauntleroy Nutt, the granddaughter of the testatrix.
In the same year,
viz., 1797, the testatrix died, and
in June, 1797, the will was duly proved at the court of monthly
session, and letters testamentary granted to Griffin Edwards, one
of the executors named in the will.
Page 49 U. S. 171
At some period of time after the death of the testatrix, the
record did not show when, Sarah Nutt, the daughter, removed the
girl Lavinia from the County of Northumberland to Alexandria, in
the District of Columbia, and there sold her to one Nicholas F.
Blacklock. After such sale, Lavinia had a numerous family of
children and grandchildren.
Elizabeth Fauntleroy Nutt, the granddaughter of the testatrix,
intermarried with William J. McClanahan, and died, leaving one
child, an infant, who survived its mother but a short time. William
J. McClanahan also died after his wife and child, but before Sarah
Nutt, without having reduced any of the said slaves into his
possession. After his death, the complainant administered upon his
estate. The order in which the parties died was according to the
following numbers:
ELIZABETH EDWARDS (1)
|
SARAH NUTT (5)
|
WM. J. McCLANAHAN (4)=ELIZABETH FAUNT. NUTT (2)
|
DAUGHTER (3)
Sarah Nutt, the last survivor of the five, died in 1840, and
after her death Thomas H. McClanahan took out letters of
administration upon the personal estate of William J. McClanahan,
and also upon the personal estate of Elizabeth F. McClanahan, his
wife, both letters being taken out from Northumberland County court
in the State of Virginia.
In April, 1845, the administrator filed his bill against all the
representatives of Nicholas F. Blacklock, who was dead, and also
against all those persons who were alleged to have purchased any of
the slaves. The bill recited the above facts and averred that
"after the decease of the tenant for life, the rightful
ownership of the slaves passed to William J. McClanahan,
notwithstanding he never had the slaves aforesaid in his
possession, by virtue of his intermarriage with and survivorship of
his said wife and infant daughter, and only child, by the said
Elizabeth, his aforesaid wife, according to the form and effect of
the statute in such case made and provided, entitled 'An act to
reduce into one the several acts directing the course of descents,'
passed 8 December, 1792. The said life estate having ceased and
determined, as your orator avers, on the ___ day of _____, 1840, by
the death of the said Sarah Nutt, and that your orator, as the
administrator of the said William J. McClanahan, deceased, now has
good right and title to sue for the recovery and possession of the
said Lavinia, and her children and grandchildren, no right of
action having accrued until after the death of the said Sarah Nutt.
"
Page 49 U. S. 172
The bill then prayed for a discovery of the number of slaves, in
whose possession they were, and for an account of the value of
their services &c.
In October, 1845, the defendants filed the following demurrer to
the bill:
"These defendants, respectfully, by protestation, not confessing
or acknowledging all or any of the matters and things in the said
complainant's bill to be true, in such manner as the same are
therein set forth and alleged, do demur thereto, and for cause of
demurrer show:"
"1st. That the said complainant hath not, in and by said bill,
made or stated such a case as doth or ought to entitle him to any
such discovery or relief as is sought and prayed for, from and
against these defendants."
"2d. That the said complainant hath not, as appears by his said
bill, made out any title to the relief thereby prayed."
"3d. That the said complainant, by his own showing in said bill,
is not entitled to the discovery and relief therein prayed, but is
barred therefrom by lapse of time, and the statute of limitation,
in such cases made and provided. Wherefore, and for divers other
errors and imperfections, these defendants humbly demand the
judgment of this Honorable Court whether they shall be compelled to
make any further or other answer to the said bill, or any of the
matters and things therein contained, and pray hence to be
dismissed with their reasonable costs in this behalf expended."
"FRANCIS L. SMITH,
Solicitor for Defendants"
In May, 1846, the cause came up for argument, when the court
sustained the demurrer and dismissed the bill.
The complainant appealed to this Court.
Page 49 U. S. 177
MR. JUSTICE NELSON delivered the opinion of the Court.
Page 49 U. S. 178
The bill was filed by the administrator of Thomas H. McClanahan
against the defendants to obtain possession of Lavinia, a slave,
together with three children, Betsey, Polly, and Maria, and several
grandchildren, which had been bequeathed by Elizabeth Edwards to
Sarah Nutt, her daughter, for life, and after her decease to
Elizabeth F. Nutt, a granddaughter, the wife of the complainant's
intestate. Elizabeth, the granddaughter, died, leaving the
intestate, her husband, surviving, who died also, leaving Sarah,
the life tenant, surviving. The latter died in 1840.
The complainant took out letters of administration on the estate
of the husband September 9, 1839, and afterwards upon the estate of
Elizabeth, the wife, on 9 November, 1840, and filed this bill in
April, 1845, claiming that the property and right to the possession
of the slaves bequeathed to the wife in remainder became complete
in him, as the representative of the estate of the husband, on the
death of the life tenant.
The defendants demurred to the bill, and several grounds of
objection have been taken under the demurrer.
1. That there is no averment that the executors of Mrs. Edwards
assented to the legacy to the granddaughter so as to vest the
property in the legatee and enable the personal representative to
bring the suit.
Hairston v. Hall, 1 Call. 188;
Smith
and Wife v. Towne's Administrator, 4 Munf. 191.
The whole of the personal estate of the testator devolves upon
the executor, and it is his duty to apply it in the first place to
the payment of the debts of the deceased, and he is responsible to
the creditors for the satisfaction of their demands to the extent
of the whole estate, without regard to the testator's having, by
the will, directed that a portion of it shall be applied to other
purposes. Hence the necessity that the legatee, whether general or
specific, and whether of chattels real or personal, must first
obtain the executor's assent to the legacy before his title can
become perfect. He has no authority to make possession of the
legacy without such assent, although the testator by the will
expressly direct that he shall do so; for, if this were permitted,
a testator might appoint all his effect to be thus taken, in fraud
of his creditors. 2 Wms. on Exec. 843, ch. 4, § 3, and cases
there cited.
But the law has prescribed no particular form by which the
assent of the executor shall be given, and it may be, therefore,
either express or implied. It may be inferred from indirect
expressions or particular acts, and such constructive permission
shall be equally available. An assent to the interest of the tenant
for life in a chattel will inure to vest the interest of the
Page 49 U. S. 179
remainder, and
e converso, as both constitute but one
estate. So an assent to a bequest of a lease for years carries with
it an assent to a condition or contingency annexed to it, and it
may be implied from the possession of the subject bequeathed by the
legatee for any considerable length of time.
Id., 847 and
cases.
The bill in this case contains an averment of the possession of
the subject of the legacy by the life tenant, in pursuance of the
bequest in the will, and which is admitted by the demurrer, and
upon the principles above stated lays a sufficient foundation for
the presumption that the possession was taken with the assent of
the executors -- a presumption of law from the facts admitted, and
which assent inured to the benefit of the remainderman. This ground
of objection is not, therefore, well taken.
2. The next objection is that the complainant has shown no title
to the slaves in question upon the face of the bill.
Because the interest in the remainder did not vest in the
intestate, the husband, before his death, so as to make the
property a part of the assets of his estate, to be administered
upon by his personal representative. He survived Elizabeth, his
wife, the legatee in remainder, but died before the life tenant,
and therefore had not and could not have reduced the subject of the
legacy into possession in his lifetime.
This question is to be determined upon the laws of the State of
Virginia; and, on looking into the course of the decisions of the
courts in that state, it will be found that the interest of the
husband in the wife's remainder of this species of property is
placed upon the footing of an interest in a chose in action of the
wife, which vests in the husband, if he survives, subject to be
reduced to possession by him, if living at the termination of the
life estate, and if not, by his legal representative, as a part of
his personal estate.
Dade v. Alexander, 1 Wash. 30;
Wallace v. Taliaferro, 2 Call. 447, 470-471, 490;
Upshaw v. Upshaw, 2 Hen. & M. 381, 389;
Hedren v.
Colgin, 4 Munf. 231, 234, 235;
Wade v. Boxley, 5
Leigh. 442.
In a very early case in the Court of Appeals,
Dade v.
Alexander, decided in 1791, it was resolved, a
feme
sole being entitled to slaves in remainder or reversion and
afterwards marrying, and dying before the determination of the
particular estate, the right vests in the husband. The president
(Pendleton) stated that this was the constant decision of the old
General Court from the year 1653 to the Revolution, and has since
been confirmed in this Court in the cases of
Sneed v.
Drummond
Page 49 U. S. 180
and
Hord v. Upshaw, and that it had become a fixed and
settled rule of property. The case of
Wade v. Boxley,
decided in 1834, affirmed the same principle. There, the question
was between the surviving husband and the children of the deceased
wife as to the slaves in remainder, the wife having died before the
life tenant. The court held the wife took a vested remainder in the
slaves, which at her death devolved to her husband, and not to the
children.
There is some question in the books whether the husband can
bring a suit in his own name, or, in case of his death, a suit can
be brought in the name of his personal representative to reduce to
possession this species of property after the termination of the
life interest, or whether he or the personal representative, as the
case may be, is not bound to take out letters of administration
upon the estate of the wife and bring the action as such
administrator.
That the husband and, in case of his death, his personal
representative, are entitled to administration in preference to the
next of kin to the wife was expressly decided in the case of
Hendren v. Colgin, already referred to.
In the case of
Chichester's Exec. v. Vass' Adm'r, 1
Munf. 98, Judge Tucker expressed the opinion that in equity,
letters of administration upon the estate of the wife were
unnecessary, and he referred to several authorities in England in
support of the position, and especially the case of
Elliot v.
Collier, 3 Atk. 528;
S.C., 1 Wils. 168;
S.C., 1 Vern. 15.
See also Squib v. Wyn, 1 P.Wms.,
378, 380, 381; Harg., note to Co.Lit., 351; Whitaker v. Whitaker, 6
Johns, 112, 117-118.
The cases of
Dade v. Alexander, Robinson v. Brock, Drummond
v. Sneed, and
Wade v. Boxley, already referred to,
are cases in which the administration on the wife's estate seems to
have been dispensed with.
The usual course, however, is to take out letters, though it is
difficult to assign a reason for the requirement except perhaps to
give the creditors of the wife a remedy, as the surviving husband
is liable for her debts in this representative character to the
extent of her assets.
Heard v. Stamford, Cases Temp.Talb.
173; 3 P.Wms. 409; 2 Wms. on Exec. 1083, 1084;
Gregory v.
Lockyer, 6 Mad. 90. These are limited to her personal estate,
which continued in action, and unrecovered at her death. Beyond
this he is not responsible, after her decease, no matter what may
have been the estate received by her. 2 Wms. on Exec. 1084;
Went.Off.Exec. 369, and cases before cited.
In this case, the complainant took out letters of
administration
Page 49 U. S. 181
upon the estate of Elizabeth, the wife, which are referred to in
the bill, as well as the letters upon the estate of the husband;
but there is no averment of a claim to the possession of the slaves
in that right, the claim being placed exclusively upon his right as
administrator of the husband. The bill is probably defective for
want of this averment, but as it is defective upon another ground,
which we shall presently state, it is unnecessary to express a
definitive opinion upon this one.
The will of Elizabeth Edwards bequeathed to Sarah Nutt, her
daughter, the slave Lavinia, together with her future increase,
during her life, and, at her death, to Elizabeth, the
granddaughter, the wife of the intestate, and to her heirs forever.
And the daughter, before the termination of the life estate, and
after the slave came into her possession, sold her to one Nicholas
F. Blacklock, residing in the City of Alexandria, since deceased,
leaving a widow and three children. These children and the husband
of one of the daughters are made defendants, and also the husband
of the only living child of George Coleman, who, it is charged,
purchased Betsey, one of the children of Lavinia, and William D.
Nutt, his administrator. These comprise all the defendants.
The bill prays that the defendants may be decreed to make
restitution of the slave Lavinia, her children and grandchildren,
and also to make compensation for the services of the same since
the right of the intestate accrued, and further that they discover
the numbers and names of the children and grandchildren, and the
person or persons in whose possession they are or who own or claim
them, or either of them, and also various other facts and
circumstances tending to establish the title of the complainant to
Lavinia, and her increase, which it is not material further to
notice.
The ground of objection upon the demurrer, in this part of the
case, is that there is no direct or positive averment in the bill
that the defendants, or either of them, have any interest in the
slaves in question, or that the slaves themselves are in their
possession, or under their control, or in the possession or under
the control of either of them; and which ground of objection, we
are of opinion, is well taken, and fatal to the relief prayed
for.
There is not only no direct averment of possession or control,
but the contrary appears upon the face of the bill. It is charged
that Lavinia and her daughter Maria reside in the Town of
Alexandria and go out to service, accounting therefor to the family
of Nicholas F. Blacklock, for the in behalf of the widow, who is
not a party to the bill; that Polly and her children
Page 49 U. S. 182
reside in the City of Washington with persons unknown, and that
Betsey and her children are either in the actual possession of
Richard Davis, the husband of the daughter of George Coleman,
deceased, or under the control of William D. Nutt, his
administrator.
Possession is thus shown to be out of the defendants, with the
exception of Betsey and her children, who are stated, as we have
seen, to be either in the possession of Davis, or under the control
of Nutt.
It is apparent, therefore, upon the face of the bill that the
complainant has set forth no title to relief against these
defendants, or either of them, whatever may be the right which he
has shown to the slaves themselves, as it is not averred that they
or either of them have any interest in the slaves, the subject
matter of the suit, or that they are in any way liable to account
to him for the same or chargeable for their services.
The purchase of Lavinia by Blacklock of the life tenant was
lawful, and vested in him the title and right to her service and
increase until the termination of that estate in 1840. The sale by
him of Betsey to Coleman was also lawful, and whether or not the
others continued in the family and belonged to him at his decease,
and passed to the widow and children, as part of his estate is
nowhere stated in the bill.
There is no averment that the children, who are made defendants,
took any interest in them at his decease, as his heirs, next of
kin, or legatees, and as we have already stated, not even so much
as possession. The only allegation in this respect is
"that since the sale to Blacklock by Mrs. Nutt, the said Lavinia
has had a numerous increase, to-wit, children and grandchildren,
most of whom have been sold, or otherwise disposed of, as your
orator is informed and believes, and that some them are now going
at large, or are in the possession of the family of the said
Blacklock,"
but in the possession of what members of the family, or whether
in the possession of any of those who are made defendants, are
matters left altogether to conjecture and surmise.
The same vagueness and uncertainty exist in respect to the
charges against the other defendants.
There is no averment that Betsey and her children belonged to
Coleman at his decease, and passed to his widow and children, or
that they had any interest in the same, the only allegation in this
respect being that they are said to be in the possession of Davis,
the son-in-law, or under the control of Nutt, the
administrator.
The radical vice in the bill is that no case is made out
Page 49 U. S. 183
against these defendants or either of them -- no foundation laid
creating a liability, legal or equitable, to deliver the slaves to
the complainant or to account for their value or services; they
seem to have been made parties, one and all, as witnesses to
establish a supposed right of the intestate to the property under
the idea that, from their connection with the families of the
former own owners of the life interest, they might be able to give
some information on the subject. Story's Eq.Pl., §§ 234,
244, 245, 510, 519; Cooper's Pl. 41, 42; 2 Johns.Ch. 413.
There are other objections taken to the relief sought in this
form, which are worthy of consideration, but as the ground above
stated disposed of the case, it is not important that we should
examine them.
The complainant having, in our judgment, failed to set forth any
foundation for relief, the right to the discovery, which is claimed
as incidental, of course fails with it. Story's Eq.Pl. § 312
and note; 17 Me. 404; 3 Edw. 107; 3 Beav. 284.
The decree below must be
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia, holden in and for the County of Alexandria, and was
argued by counsel, on consideration whereof it is now here ordered,
adjudged, and decreed by this Court that the decree of the said
circuit court in this cause be, and the same is hereby, affirmed
with costs.
