
    Eph. Lyles, ex’r. of Elizabeth Sims, vs. Matthew Sims.
    
      Jin Executrix having a right to the possession of an estate for life or widowhood, purchased doves■ with the mesne profitsv Held that they were her individual property, and not a part of the estate,- and this■ notwithstanding her declarations that they were purchased for' the estate.-
    
    Trover for two negroes, Hannah and" Anderson. Elizabeth Sims died in 1820, and by her will hequeathed all her property to the plaintiff, and appointed him. her executor. The plaintiff proved that the negroes were purchased by her many years ago, and that they had continued in her possession up to the time of her death. The defendant's claim grew out of the following circumstances: James Sims, the husband of Elizabeth. "Sims, died about the year 1796, and in his last will and- testa-incut, which was duty proven and recorded, is the following clause, to wit: •“ Item, my will and desire is, that the residue of my estate, of what nature soever, shall remain in possession of my wife, Elizabeth, under the direction of my executors; until my debts are fully paid and during her widowhood; to be delivered as a loan to either of my five sons, as they may need, agreeably to the opinion of my executors, not to be removed beyond the limits of the state, and debarring the delivery of a slave to my son James; and after the death of my wife, all such estate, together with the increase arising thereon, to be collected together and appraised by three justices of the peace for this county, with the assistance of my said executors, which I give to be equally divided between my four sons, Matthew, John, Nathan, and Reuben, they paying to my son James one-fifth part of the residue of such estate, to be delivered to him.”
    John Sanders and Peter Brasilman were appointed executors, and his wife Elizabeth, executrix, all of whom qualified.
    In pursuance of this clause of the will, a considerable estate consisting of lands, negroes, stock, Sic. was left by the executors in the possession of Elizabeth Sims, who finding the annual income more than sufficient for her support, laid it out in the purchase of negroes, amongst whom were those in dispute. Until a few years before her death, she always spoke of these negroes as a part of the estate of her deceased husband, but havingbecome displeased with her children, she said that she had taken counsel on the subject, and was advised that she had the power of disposing of them, and had determined to leave them to the plaintiff.
    After the death of Elizabeth Sims, John Sanders, the only surviving executor, took possession of the estate, including the negroes in dispute, and made partition amongst the legatees, the defendant being one, and these fell to his share.
    On the trial of the case in the court below, the following questions were made: 1st. Whether, under the will of her husband, Elizabeth Sims took a life estate in the property left in her possession, and had a right to dispose of the mesne profits: 2d. Admitting that she did not, whether the surviving executor had a right to seize on the negroes thus purchased, as an indemnity for the devastavit.
    
      The presiding judge was of opinion with the plaiutiii, and under his direction, the jury found a verdict in his iaver fer the value of the negroes.
    A motion was made for a new trial, cn the ground of misdirection in the foregoing particulars.
   The opinion of the Court toss' delivered by

Mr. Justice Johnson. .

In the discussion of the question arising out of the first proposition, it was contended on the part of the defendant that Mrs. Sims took nothing under this clause of the will, except the naked possession, which belonged to her in the character of executrix; and at most, no more than was absolutely necessary for her support and maintainance: that the fund with which these negroes were purchased Was so much surplus and belonged to the estate; and that therefore they v/ercthe property of the estate of James Sims.

It is not necessary to the determination of this case, to enter into the consideration of this question: and as the case will probably find its way into another court, possessing' competent powers, it is thought advisable to leave it unfettered by any opinion of this court. I shall therefore only notice the ground on which, in the view of the court, the present motion cannot avail the defendant; which brings me to the second proposition.

To get at this question, it must be conceded that Mrs. Sims took nothing but a naked possession under the will, and consequently, that the fund arising from mesne profits belonged to the estate of James Sims, and it would follow that any dis-posion of them would he a' devastavit.

It is in vain that the declarations of Mrs. Sims, that she purchased these negroes for the estate, are urged in support of this motion. If the funds did not belong to her, in her own right, she had not the power of investing them in this manner, and the legal property must be vested in her. If a loss had occurred it must have devolved on her, and if a profit has been derived from it, she would, for that reason, be entitled to the fruits,

There is another view of the subject, which, in my mind, ■is equally conclusive. It v/ill be recollected that near thirty-years has elapsed since the death of James Sims, and it is impossible in this form of action to obtain an account of her administration of that estate. All that we know of. it, is, that at the time she purchased these negroes, there was a disposable fund at her command; but whether the estate was productive before or after, or whether it is or is not now largely indebted to her, we cannot know but by calling her executor to an account; and whether there are not other demands against her of equal or superior degree, we must he ignorant. It is necessary therefore, that this fund should go into the hands of her executor, to be disposed of in the manner provided by law.

The motion is therefore refused.

JYott, Richardson, Huger and Gantt, Justices, concurred. 
      
      
         This seems clearly tobe the rule of Jaw, A different rule (or a modi, fication of the rulej obtains in equity. If an executor purchase with the funds •of the estate, it is at the option of those entitled to the estate, to charge him with the money and interest, or to take the property purchased. An executor or administrator is iti equity a trustee, and such purchases made hy him are subject to all the rules which apply to resulting trusts. But the application of the trust fund must he clearly proved ("On. in the life time of the executor) or established by the confession of the executor or trustee. See Ryall, vs. Ryall, 1 Atk. 58. Lloyd, vs. Spillet, 2 Atk. 150. Lane, vs. Dighton, Amb. 409. Boyd, vs. M‘Lean, 1 John. Ch. Rep. 587. Botsford, vs. Burr, 2 Johns. Rep. 408. Glass, vs. Baxter, 4 Eq. Rep. 153.
     