
    Scott and Wife v. Halliday and Hinton.
    Decided March 16, 1816.
    H. CSianccry Practice — aide cl Legacy ceder Execution against Estate — itsjmclloi!. —11 a lieri facias against tile eoo<l:s of a testator lie levied on slaves, which, by his will, were speciiicaily bequeathed, and after his death were allotted to the legatee by the executor, who thereupon held them, and hired them out, as guardian for such legatee — a court of equity ought, by injunction, to stop the sale, until an account of the assets remaining unadminis-tered shall be taken, and upon such account, to decree that the creditor shall be satisfied out of those assets; — or, (if there be a deficiency,) out of the residue of the estate of which the testator died possessed; having regard to the rights of the several legatees under the will.
    See Burnley v. Rambert, 1 Wash. 312; — Randolph v. Randolph and others, 3 Munf. .99; and Wilson and Trent v. Butler and others, Ibid. 559.
    William Scott and Mary his wife, formerly Mary Davis widow of Edward Davis deceased, presented a bill of injunction *to the judge of the superior court of chancery for the Richmond district, stating that the said Edward died about the month of October, 1806, seized and possessed of a considerable estate, real and personal; — that, before his death, he duly made and published his last will in writing, in which, (among other things,) he bequeathed to the plaintiff Mary certain slaves for her life, and certain other slaves to Martha E. Davis, (a posthumous child,) as her own absolute property; — that Hard-away Manson was appointed, and lawfully qualified as executor of the testator, and guardian of the said Martha E. Davis, and, in the course of his administration as such delivered to the plaintiff Mary the slaves devised to her as aforesaid for her life, and held, in his character of guardian aforesaid, the slaves devised to Martha E-Davis his ward, as aforesaid, which circumstances ought to be regarded (until the contrary should appear,) as conclusive proof that independently of the said slaves, the said executor possessed enough of his testator’s estate to pay every debt chargeable thereon ; for debts are certainly to be paid before legacies, and, therefore, whenever an executor shall discharge legacies, the inference inevitably is, that all debts have been paid, or that they are ready to be paid by the executor.
    The complainants farther stated that, the securities of the said executor for his administration having demanded counter-security, which he failed to give, administration de bonis non with the will annexed was granted to the plaintiff Mary, then Mary Davis; that, after the death of Hard-away Manson, she also qualified as guardian of the said Martha E. Davis, and in that character was possessed of the slaves devised to her; — that, in their opinion, they had fully and faithfully administered all the estate of the said Edward Davis which had come to their lands to be administered ; — 'but of this they were ready and willing to render an account; — that, since their intermarriage, a judgment had been lately obtained against them, as administrator and administratrix, in the superior court of law *'for Din-widdle county, by Halliday and Hin-tons, for the sum of 1391. Ss. 7 l-2d. with legal interest thereon from the 4th day of September, 1807; — the suit in favour of the said Halliday and Hintons having come to trial unexpectedly, which prevented their shewing, under the plea of plene adminis-travit, that no assets remained in their hands: — that, a writ of fieri facias being issued upon the said judgment, was levied on three slaves the property of Martha E. Davis, acknowledged to be such, and held as such, not by the complainants only, but also so previously held by the said Manson ; that, in performance of the dut3 which he owed to his ward, the complainant William Scott forbade the sheriff to levy the said execution upon those slaves; which he nevertheless persisted in doing, and would proceed to sell them, unless restrained by the court. The plaintiffs therefore prayed an injunction to stop the sale, and for such other relief as their case required ;• — making the said Halliday and Hintons, and also Thomas Parham acting administrator of Hardaway Manson, defendants to their bill.
    Chancellor Taylor refused to grant an injunction according to the prayer of this bill; but it was granted by Spencer Roane a judge of the court of appeals; — judges Brooke, Cabell and Coalter concurring, and judge Fleming, being absent.
    The defendants Halliday and Hintons filed their answer, stating that, after every effort had been used by the complainants to, defeat their claim, (the justness of which is not controverted,) they obtained their judgment at law, and sued out execution ; that the same was levied on negroes, which were the property of the said Edward Davis in his life time; that they were informed, and most sincerely believed, that no assignment was made to the widow, or to Martha E. Davis, of the negroes bequeathed to them respectively: — there was no evidence of it on record; nor did the fact- ever take place; but, if it did, the complainants were bound to prove it; and, even in that case, as they had voluntarily brought themselves before a court of equity, the court ought to pronounce exactly such a decree as if the respondents had instituted a suit therein. If, however, such an assignment was made, it was strange that the widow should have taken on herself the burden of administering on the estate, (when, if the allegations of the complainants were true, *the estate was nearly, if not entirely, administered ;) and that she should not have pleaded that fact to the suit. The respondents remarked, to shew the fraudulent conduct of the complainants, that, whenever, a judgment was obtained against Scott for a debt contracted by himself, a marriage contract was exhibited by the wife as a bar to the levying of the execution ; that if a judgment was obtained against herself as ad-ministratrix, then the property was shielded by its having been assigned and allotted to her by the executor; and if a judgment was obtained against Scott and wife, for a debt contracted by herself while a feme sole, then the property belonged to the estate of Edward Davis, and no disposition could be made of it until his debts were, paid off and extinguished. Yet they paid no debts of any description or character 1
    The answer of Thomas Parham, administrator of Hardaway Manson, stated, that, shortly after the complainant Mary qualified as administratrix of Edward Davis, an order was'made by the county ^ourt of Din-widdie, requiring certain gentlemen to examine, state and report the accounts of the said Hardaway Manson as executor; that, in compliance with that order, the commissioners did report a balance to be due from the said executor, amounting to about 160 or 2001. ; that, shortly afterwards* the complainants Scott and wife instituted a suit against said Manson to recover that balance, and a judgment was confessed by him in their favour for the same; that, the said judgment not having been paid in the life time of the said Manson, a scire facias to revive it was sued out by the complainants against this respondent and Joanna Manson as administrator and administra-trix of said decedent; which scire facias was still pending in the county court of Dinwiddie; that this respondent had made to the complainants several payments in part of said judgment, and meant to pay the balance, unless this court should diiect otherwise: but he insisted that the settlement aforesaid was final and conclusive between the said Davis’s estate, and the said Manson’s, unless fraud or mistake could be shewn ; and that the complainants had made it binding on them by accepting it, and suing for, and receiving a confession of judgment for the amount. “After this, it surely cannot be contended that this respondent is accountable to Halliday and Hintons, and to the complainants too; or that *Manson acted, improperly in settling with them the balance due to his testator; in as much as the law transferred upon them the duty of paying all outstanding debts against the estate: as little can it be contended that because he gave up the slaves to the widow and orphan of his testator, perhaps prematurely, therefore that property, and the complainants, in whose hands it is, should be exempted from the payment of those debts. ”
    Chancellor Taylor dissolved the injunction at June term, 1813. Certain affidavits, upon due notice, were afterwards taken in support of the bill; proving, in substance, that the slaves bequeathed to Martha E. Davis, as aforesaid, were allotted to her by Hardaway Manson, and hired out for her benefit by him as her guardian. A motion was then made, in vacation, for re-instatement, which the chancellor overruled; but made an endorsement upon the papers, “that those affidavits might be considered as a part of the record in this case, and, as if they had been filed before the motion was made for a dissolution ; that the plaintiffs might, in their application for an appeal from that order, have the full benefit of them.”
    Upon a petition presented for that purpose, an appeal was granted bj a judge of this court.
    
      
       CSrrmcery Practice — SaEe aaisder Execution — Sujunc-tloas. — A court of equity should not interfere to prevent a creditor from seizing and selling under his execution any property, which he may think liable to it unless the property be of such a character that the owner cannot be fully compensated by the verdict oí a jury giving him its fair market value: and this can only be, where the property is of such a nature that it may fairly be supposed to have a peculiar and additional value in the estimation of the owners, Vhepfetium affectionin. Baker v. Rinehard, Mayer & Co.. 11 W. Va. 241, citing principal case and Sampson v. Bryce, 5 Munf. 175.
      See further, on this subject, foot-note to Kelly v. Scott, 5 Gratt. 480; monographic note on “Executions” appended to Paine v. Tutwiler, 21 Gratt. 440; monographic note on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
      The principal case and Sampson v. Bryce, 5 Munf. 175, are also cited in Bowyer v. Creigh, 3 Rand. 31; Simmers v. Bean, 13 Gratt, 415.
      Legacies — Assent of Executor — Effect.—The assent of the executor to a specific legacy vests the legal title to the legacy In the legatees. This doctrine is unq.uest.ionabin. Burchard v. Wright, 11 Leigh 470, citing the principal case and Sampson v. Bryce, 5 Munf. 175, as authority.
      See further, monographic note on “Regacies and Devises” appended to Early v. Early, Gilm. 124.
    
   Saturday, March 16th, 1816, the.president pronounced the court’s opinion:

The court, considering the papers referred to in the endorsement of the chancellor of the 20th of August, 1813, as a part of the record, and it appearing by the proofs therein that the slaves, on which the execution of the appellees Halliday and Hinton was levied, are a part of those devised by Edward Davis to his daughter Martha BJ. Davis; and further that they had been duly allotted to her, among others, as a legacy, by Hardaway Manson, the executor of the said Edward Davis, and had been hired out by the said Manson, as her guardian, for the benefit of the said Martha E. Davis, is of opinion that the said order, dissolving the injunction awarded by one of the judges of ibis court with the assent of three other judges, is erroneous. Therefore it is decreed ana ordered that the same be reversed, with costs; and that the cause be remanded to the said court of ^chancery, in order that an account may be taken, before one of the commissioners of that court, of the administration de bonis non of the estate of the said Edward Davis by William Scott, ope of the appellants, in right of his wife Mary, the other ajjpellant, to whom administration of the estate of the said Edward Davis, with the will annexed was granted, previous to their marriage; and that, if it shall appear, on the report thereof, to be made by the said commissioner, that assets of the said Edward Davis remain in the hands of the said appellants sufficient to satisfy and discharge the execution of the appellees Halliday and Hinton, the appellants be decreed to pay the amount thereof out of the said assets; but if it shall appear by the said report that the said assets are insufficient to discharge the said execution, or any part thereof, then, and in that case, the deficiency to be made up out of the residue of the estate of the said Edward Davis, having regard to the rights of the several legatees under his will.  