
    Richmond.
    Cross’ curatrix v. Cross’ legatees.
    
    1849. January Term.
    
    1. J C bequeathed to his son F C sundry slaves with limitation over upon F C’s death without issue. F C sold some of these slaves, one to an unknown purchaser; and then died without issue. The parties entitled under the limitation over file a bill against the curatrix of F C and the purchaser of one of the slaves, to recover the slaves, or the value of those sold, and seek a discovery as to the unknown purchaser. Heed :
    1st. That all the parties being before the Court, the plaintiffs may elect to proceed for the recovery of the slaves specifically, or for the value of those sold, from the curatrix of F C. And to avoid multiplicity of suits, and because the bill seeks a discovery in relation to one of the slaves sold to some person unknown, a Court of Equity has jurisdiction of the case.
    2d. It appearing from the pleadings and proofs that the curatrix had proceeded to administer the estate as if she was tho administratrix or curatrix appointed under the 42d section of the act 1 Rev. Code, ch. 104, p. 386, it was proper to decree against her in favour of creditors or distributees, for the value of the assets in her hands. And the objection for the first time raised in the appellate Court to a decree against her as curatrix comes too late.
    3d. There being no other proof of the value of the slaves sold, except the price for which F C sold them, his estate is to be charged for them at that price.
    
      2. An administratrix who sells the property of the estate at a very great sacrifice, and purchases it herself, will be held to account for it at the appraised value.
    3. An administratrix who sets up the slaves of the estate to be hired publicly, and hires them herself at very reduced prices, and then hires them out to other persons at an advanced price, will be held to account for the advanced price, or if that cannot be ascertained, for reasonable hires.
    4. An administratrix or other fiduciary whose duty it is to hire out slaves for the benefit of the cesluis que trust, will be held to account for interest on their estimated hires.
    5. Persons not holding slaves as fiduciaries, will not be held to account for interest on estimated hires.
    In May 1831, Finch Cross and the other surviving children and a grandchild of John Cross deceased, filed their bill in the late Richmond Chancery Court, in which they charged: That their father John Cross had departed this life in 1823, having first made his will which had been duly admitted to record in the County Court of Hanover. That amongst other provisions of his will he directs, that if either of his children shall die without lawful heirs from them descended, that in that event the lands and slaves herein given to them, shall be equally divided between his other children and their descendants : That the estate had been divided among his children according to the provisions of the will: That Fleming B. Cross, one of the children, had since died, leaving a widow, Nancy B. Cross, but leaving no children : That he had derived from his father the slaves, Major, Jack, Robin, Moses, Dilsey, Elsy and Celia: That the said Fleming B. Cross in his lifetime, sold Moses to some person whom the plaintiffs had been unable to ascertain : That he had sold Robin to Hezekiah Starr for 425 dollars, and Starr had conveyed him to John Enders in trust for the benefit of Charles Starr an infant son of Hezekiah: That he had exchanged Celia with Tinsley Davis of the state of Alabama, for another woman named Hannah: That the other slaves derived by Fleming B. Cross from his father, are in the possession of his widow Nancy B. These slaves and their increase the plaintiffs claim that they were entitled to from the death of Fleming B. Cross.
    
    They farther charge that Fleming B. Cross by his marriage acquired several slaves, who they name: That they are entitled to one moiety of these slaves, and of all other personal property of the said Fleming B.; and of the other moiety of the slaves at the death of the said Nancy B.
    
    They further charge, that siuce the death of Fleming B. Cross, his widow had put up to sale the whole or a portion of the slaves which he had acquired from his father, as well as his other personal estate, and had bought them in herself for some merely nominal consideration.
    Thoy make the said Nancy B. Cross in her own right and as administratrix or executrix of Fleming B. Cross, or in any other character in which, in connexion with the property before mentioned, it may be necessary to charge her, Tinsley Davis, John Enders and Charles Starr parties defendants, and pray that the said Nancy B. may be compelled to settle her accounts as the representative of the estate of Fleming B. Cross; that she may be compelled to surrender to the plaintiffs the slaves claimed by them, and to account for and pay to them the hires and profits of these slaves : That Tinsley Davis and John Enders may be compelled to surrender the slaves Celia and Robin, and account for their hires; or if this cannot be done, that their values and hires, as well as the value and hires of the slave Moses sold by F'leming B. Cross in his lifetime, may be decreed to the plaintiffs out of his estate. And they pray for general relief.
    
      Nancy B. Cross filed her answer, in which she styles herself curatrix of the estate of Fleming B. Cross. She admits the death of John Cross and the provision of his will, as stated in the bill; the death of Fleming B. 
      
      Cross without children ; his having acquired several valuable slaves by his marriage with herself; and also his having acquired at least a life estate in several slaves under the will of his father John Cross; but she denies ^at ^e acquired Jack and Robin under said will. She says that these slaves had been held by Fleming B. Cross as his absolute property, probably ten years, certainly over five years before the death of John Cross : That Celia who was very infirm and idiotic, had been given by John Cross to Fleming B. years before his death, and had been exchanged by Fleming B. with Tinsley Davis for a woman called Hannah, who was still in the possession of the respondent: That as to the other slaves acquired by Fleming B. Cross under the will of his father, they were in her possession, but she had never set up any claim to them, and had offered to surrender them to the parties entitled to them, and had given the parties a written notice to that effect.
    She says, as to the sale of the personal property and the hiring of the slaves, that having been duly appointed curatrix of the estate of her husband, she advertised the sale of the property and the hiring of the slaves, at public auction, at which all who chose, purchased and hired; and she had purchased some of the property, and hired the slaves. That some dissatisfaction having been expressed thereat, she had advertised still more extensively, and resold all the personal property she had purchased at the first sale, and again hired out the slaves; and that it was all done fairly and legally. She expresses herself willing to account, and to dispose of the estate as the Court may direct.
    
      John Cross in his will says: “ I do hereby confirm all the gifts of slaves and other property I have heretofore made to any of my children, to wit: the slaves Jack and Robin to my son Fleming B. Cross,” &c. &c. And by a codicil to his will, he gives Celia to Fleming B.; and he directs that what each child has received shall be estimated in his or her share, and that his children shall share his estate equally.
    It appeared from the evidence that the property purchased by Mrs. Cross was purchased at a great sacrifice; the proceeds of the sale of the whole personal property amounting to but 444 dollars 16 cents, when it was appraised to 926 dollars 37 cents; and there was reason to believe the appraised was below the real value. She also hired the slaves, at low prices, and then hired them out again at a profit.
    In the progress of the cause the slave Jack was sold under the decree of the Court and the proceeds of sale deposited in bank, to await the final judgment of the Court, and the other slaves received by F. B. Cross under his father’s will, which he had not sold in his lifetime, were surrendered to the plaintiffs. It appeared that he had sold Robin for 425 dollars, Moses for 167 dollars, and had exchanged Celia with T. Davis; her value being fixed by the commissioners who divided the estate at 70 dollars: and there was no other evidence of the value of these slaves at the death of Fleming B. Cross.
    
    The accounts of the curatrix were referred to a commissioner, who made a report, in which he credited the curatrix with the disbursements made by her, and charged her with the amount of sales of the personal property, and the prices at which she hired the slaves; and upon the account thus settled she was in advance to the estate 936 dollars 22 cents. The plaintiffs by their counsel excepted to this report, on the ground that the curatrix having sold the personal property at a great sacrifice and purchased much the greater part of it herself, she should be charged not with the proceeds of sale, but the appraised value. And as to the hires of the slaves, it was insisted that she should be charged, not at the prices at which she hired them to herself, but at what she hired them to others, where that could be ascertained, and where it could not be ascertained, she should be charged reasonable hires: and special statements, marked D and E, were made by the cominissioner in accordance with the views of the plaintiffs. The first was a statement of the administration account, upon which the curatrix was found indebted on the 1st of January 1835, of principal 841 dollars 15 cents, and interest 109 dollars 79 cents, a part of which was interest on the estimated hires of slaves: but the administration of the estate was not then completed. By the second statement the curatrix was charged with hires for the slaves received by Fleming B. Cross under his father’s will, up to the 1st of January 1835, amounting to 492 dollars 40 cents. In this account the curatrix is charged with the hires of Hannah, the woman received by Fleming B. Cross from Tinsley Davis in exchange for Celia, and with the estimated hires of the slaves which she said in her answer she did not claim and was ready and willing to surrender.
    Pending the suit, the defendant Nancy B. Cross intermarried with William B. Campbell; and when the cause came on to be heard, the Court below sustained the plaintiffs’ exceptions to the commissioner’s report, and adopted the special statements D and E. The Court also held, that the slaves Jack, Robin and Celia, were subject to the limitations of the will of John Cross; and in the events which had happened, were the property of the plaintiffs; and accordingly decreed that the defendants Campbell and wife, out of the assets which had come to their hands, or to the hands of either of them, of the estate of Fleming B. Cross, should pajito the plaintiffs, respectively, their proportion of the sums for which Robin and Moses had been sold by Fleming B. Cross, and at which Celia had been estimated by the commissioners who divided John Cross’ estate, with interest on these sums of money from the 1st of January 1831, the time when Fleming B. Cross 
      died, until paid. The proceeds of the sale of the slave Jack, which were deposited in bank, were also divided in the same manner. And a personal decree was made against the defendants Campbell and wife, for the sum of 492 dollars 40 cents, with interest on 451 dollars 72 cents, a part thereof, from the 1st of January 1835, till paid; that being the amount due, as per statement E, for the hires of the slaves derived by Fleming B. Cross from his father John Cross, since the death of Fleming B., and received by the curatrix. And the administration account was recommitted to the commissioner, with instructions to state the same, and to state clearly all the personal estate of Fleming B. Cross of every description, which was subject to distribution. From this decree, Campbell and wife applied to this Court for an appeal, which was allowed.
    
      Taylor and Scott, for the appellants.
    
      Daniel and Lyons, for the appellees.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that although the appellees might have maintained an action at law for the recovery of the slaves in the proceedings mentioned, upon the death of Fleming B. Cross, yet, as some of the slaves had been disposed of by the said Fleming B. Cross in his lifetime, it was competent for the appellees to proceed in chancery against the representative of the said Fleming B. Cross and the purchaser, in order to avoid multiplicity of suits; and that the appellees, having all the parties before the Court, might elect to proceed for the recovery of the slaves specifically, or for the value thereof, from the representative of said Fleming B. Cross. For these reasons, and because the bill also seeks for a discovery in relation to one of the slaves who had been sold to some person unknown, the objection to the jurisdiction of a Court of Chancery was properly overruled.

The Court is further of opinion, that as hy the bill, the appellant Nancy B. was sued as executrix or administratrix of her deceased husband, although the said Nancy B., in her answer, styles herself curatrix, yet, as she does not shew under what section of the law she was appointed as such curatrix, and as it does appear by her answer and the proceedings in the cause that she has proceeded to collect and dispose of the assets and pay the debts of the said Fleming B. Cross deceased, and in all respects to have dealt with the assets as administratrix or curatrix, appointed under the 42d section of act, 1 Rev. Code, p. 386, or as executrix de son tort, it was proper, under the pleadings and proofs in the cause, to decree against her in favour of creditors or distributees for the value of the assets in her hands,-.and the objection, for the first time raised in the appellate Court, to a decree against her as curatrix, comes too late.

The Court is further of opinion, that the question whether the representative of said Fleming B. Cross deceased, should be charged with the value of the slaves sold by him as of the date of the sale, or the time of his death, does not arise in this case. The only evidence as to this subject, is the evidence of the price for which the slaves were sold. In the absence of all other proof of value at any other time, the commissioner was bound to adopt the price which the slaves sold for, as the sum with which the estate was to be charged.

The Court is further of opinion, that as the administration account was not closed so as to authorize final distribution of the estate, the settlement of the administration account was only important in respect to the controversy concerning the slaves to which the appellees were entitled on the death of said Fleming B. Cross, the prices of those sold by him and the hires since his death, to enable the Court to see that there were assets in the hands of the representative of said Fleming B. Cross deceased, sufficient to pay the prices of the slaves sold by him in his lifetime. For as the slaves remaining unsold were surrendered during the progress of the suit, and the female appellant was personally liable for the hires received or chargeable from the time of the death of said Fleming B. Cross up to the period of the surrender of the slaves, the assets of said Fleming B. Cross deceased, in the hands of his representative, could be made liable for the prices of the slaves sold by him in his lifetime, and for nothing more. The fact that assets sufficient to satisfy the decree, so far as it was a decree against the female appellant as representative of the said Fleming B. Cross deceased, were in her hands unadministered, did satisfactorily appear hy the special statement D, exhibiting an account of the general administration of the estate of the deceased. And this Court, whilst approving the principles upon which, by said special statement D, the representative of said Fleming B. Cross deceased, was charged with the value of the perishable property, the hires of the slaves, and interest on estimated hires, does not construe the interlocutory decree affirming said special statement D, as precluding the representative of said estate from shewing other and additional credits during the period covered by such special statement D, when the general administration account comes to be settled; because it was unnecessary to enable the Court to act advisedly on that branch of the case then under consideration, that the general administration account should have been finally closed beforehand. This Court approves and affirms so much of said interlocutory decree as sanctions the charge in the said special statement D, for interest on estimated hires ; because the principle decided in Baird v. Bland, 5 Munf. 402, and the cases which have followed it, does not apply to the settlement of an account by a mere fiduciary or trustee, of his transactions with his cestui que trust, where the fiduciary or trustee is charged with the duty of hiring out the slaves for the benefit of his cestui que trust, and neglects to render an account of the hires, if actually received, or to charge himself with the hires, if they might have been received, or where he fails to hire out the slaves and uses them for his own benefit.

The Court is further of opinion, that there is error apparent on the face of the account E, of the hires of the negroes which came to said Fleming B. Cross by bequest from his father John Cross deceased, in charging the female appellant with interest on the estimated hires of the slaves Major and Dilsee; it appearing that the said appellant set up no claim to said slaves against the appellees entitled to them in remainder, nor did she hold them as trustee; and by her answer, which is responsive to the bill, averred that she had offered to surrender them, and stated her willingness still to surrender them. The Court being of opinion that it would be unjust in such a case, where the party remained in possession of the slaves, because of the failure or refusal of the right owner to take the possession, to make her accountable for interest on estimated hires.

The Court is further of opinion, that said special statement is also erroneous on its face, in charging the female appellant with the estimated hires of Hannah, it appearing that said Hannah was not one of the slaves given or bequeathed by the said John Cross to his son Fleming B., but a slave received by said Fleming B. from Tinsley Davis in exchange for the slave Celia, one of the slaves bequeathed to the said Fleming B. by his father; and it furthermore appearing by the decree, that the estate of the said Fleming B. was made liable for the sum of 70 dollars, the estimated value of Celia, with interest from the time of the death of said Fleming B. Being made responsible for the price of Celia, and interest thereon, it was improper to charge the female appellant in favour of the appellees, suing as remainder-men, with the estimated hires of the slave received in exchange for Celia.

It is therefore adjudged, ordered and decreed, that the said decree, so far as the same conflicts with the principles herein declared, is erroneous, and that the same, to that extent, be reversed and annulled, with costs to appellants ; and that in all other respects, the same be affirmed ; and this cause is remanded for a correction of the errors in the special statement E, according to the principles aforesaid, and that a final decree may be rendered for the proper balance appearing due to the appellees entitled in remainder to said slaves on the death of said Fleming B. Cross, and for further proceedings in relation to so much of the bill as prays for a settlement of the administration account and distribution of the estate, in order to a final decree in regard to that branch of the case.  