
    Simon Magwood, ads. Ann Legge, Administratrix of Sophia Pachrow.
    
    
      tí. H. executor of S. P. deceased, but who was not shewn to 'nave ever proved the wills or qualified, sold a slave belonging to his testatrix’s estate, to defendant, “ his executors, administrators, and assigns forever;” but did not style himself executor in the bill of sale. By the will of testatrix, the “ annual income” of the property was given to the executor, tí. II. in remainder, . expectant on the death of a third person person without issue. Held that II. H. had full power to sell, as executor, though he had never proved the will, nor qualified; and having no power • to sell as legatee, he should be ta' en to have sold as executor, though he did not so style himself in the bill of sale. He ivho ■ does an act which he cannot do effectually, but by virtue of an authority, shall be taken to have acted in execution of his authority.
    Trover to recover the value of a slave, named Cuffy. It was admitted on all sides that • Cuffy, originally belonged to Sophia Packrow, ■ and the plaintiff claimed as her administra-trix, with the will annexed. The claim of the defendant arose out of the following circumstances:
    - In 1796, Sophia Packrow made her will, and died somc-time after. The will contains the following clause, “ I give, devise and bequeath to my beloved grand-son, Paul Haryey “Dudley, the whole of my estate, both real and personal, to him and his lawful issue forever. But in case my grand-son aforesaid, should die, leaving no issue lawfully begotten, then in that case, my will and desire is that my personal property be kept together, and that my beloved son, Henry Harvey, shall ■inherit the annual income of such propertjr, and all and every species of other property, without disposing of any part thereof. But in case my grand-son, aforesaid, should die-, 'leaving no issue lawfully begotten, and my son, Henry Harvey, should die, leaving lawful issue, then my will and desire is, that such issue shall inherit such estate both real and personal,” &c. and in the event of the failure of such issue, the will contains a further limitation over to others, and William Warren and her son Henry Harvey are appointed executors. At the death of Sophia Packrow, Paul Harvey Dudley was an infant, and her estate went into the hands of Henry Harvey, her executor; and by a bill of sale, dated in 1798, he conveyed the negro in dispute, which was a part of that estate, to the present defendant. The bill of sale purports to be executed by Henry Harvey, hi his personal and not in his representative, character, as executor, nor does it appear that he ever qualified as such. Henry Harvey died some time after, and letters of administration with the will annexed, were granted to the plaintiff. About seven or eight years ago, Paul Harvey Dudley died without issue.
    The contest in the court below seemed to have turned on the proof of the identity of the slave, his value, and the interest which Henry Harvey took in him, as a legatee, under the limitations of the will. The jury, under the direction of the presiding judge, on the questions of law arising out of the facts, favorable to the plaintiff’s right to recover, found a verdict accordingly, and the defendant moved for a new trial, on the following grounds:
    1st. Because there was no proof that the slave in question ever belonged tothe plaintiff’s testatrix.
    2d. Because the plaintiff was -not entitled to maintain the action.
    3d. That the defendant’s title was clearly proved, and. under the circumstances of the case, he was entitled to a verdict.
    4th. That his honor misdirected the jury, in charging, that by law the plaintiff was entitled to recover, unless they were of opinion that the slave never had belonged to the estate of Packrow.
    Grimke, for appellant.
    The executor had an undoubted right to sell and to make a perfect title. Whether he ever qualified is immaterial; if he does any act as executor, it fixes the-character upon him and he cannot renounce it. He is competent to do any act, before probate, which he may do after it, Hé may sell without leave of the ordinary; he may sue, and that in his own name and onhis own possession, without styling' himself executor. It illustrates the power of the executor over the estate, that his assent vests a perfect title to a legacy; so that not even a creditor can touch it. Yet a legatee is a mere volunteer. A purchaser for valuable consideration is more favored by the law; and as against a volunteer, his title should foe protected, Hartft, vs. Heddleston, 2 Bay, 321; Lovelass dip 
      
      Wills, 191; 1 Term. Rep*.480; 1 Salk, 302; Cro. Jac. 113, Cro. Hlix. £>G8.
    When there are several executors, one alone may sell and bind the rest. 1 Aik. 460; Cro. Eliz. 496.
    Another principle is, that if a man do an act which he cannot do effectually but by an authority, it shall be taken to be in execution of his authority. Parker,, vs. Kelt, 2 Salk. 96: And Henry Harvey had no right nor power, with respect to this, property, but from his character of executor. The present ad-ministratrix cZe lords non represents the former executor. In the view of the law, they are the same person; and if the plaintiff should succeed in -the present action, it will occasion the singular result of a vendor avoiding his own sale, on the ground of his want of authority to sell.
    
      Hunt, contra.
    The ground which is now principally relied on, was not taken in the court below; and we fairly considered this as equivalent to a concession, that Henry Harvey had no title in his character of executor; that is, that his title had been divested, by a previous assent to the legacy to Paul Harvey Dudley. We may presume too, from the verdict of the jury, that they have found such assent. It is said that if a man can only do ah act by virtue of an authority, his act shall be referred to that authority; but it is equally true, that a man shall not be presumed to have committed an act of fraud; he shall be presumed to have done what he was under a moral and official obligation to perform. The executor was under such an obligation to assent to the legacy, and it was a fraud if he sold as executor. Henry Harvey certainly had an interest, as legatee, under the will; and the court may justly conclude that he sold with reference to that interest.
    Since the act of the legislature on the subject, it may be doubted whether an executor has the power to sell without the ordinary’s permission. In the case of Iiarth and Heddles-ton, permission had been obtained, but the executor did not sell in pursuance of it. Much inconvenience and the ruin of estates will result, if insolvent executors be authorized to sell without restraint.
    
      Gnmlre, in reply.
    If there was an assent to the legacy^ tjie present plaintiff cannot maintain the action: not the repre-tentative of Sophia Packrow, but the remainder man of the estate must sue. An executor cannot qualify his assent; if he Assented to the particular legacy, he assented to all that depended on it; and the estate passed, never to to return to him in his representative character.
   The opinion of the Court ivas delivered by

Mr. Justice Johnson.

The brief, on which this case has been argued, contains a variety of grounds, which from the view taken by the court, have become unimportant. It will, therefore, only be necessary to consider those on which the case turns, and which arise out of the third ground of the brief. There is no doubt about the fact, that Henry Harvey, the executor, did sell the negro in dispute to the defendant in 1798, and if he had the power to do so, there are as- little doubt that the verdict is wrong. It is, therefore, proposed to consider:

; 1st. Whether he had or had not that power.

It is not in proof whether either the other executor or himself did prove the will and qualify: and notwithstanding the great length of time which has elapsed since the death of the testator and the sale of the negro, would, in the absence of 'proof, furnish a strong presumption in support of the affirmative, yet for the purposes of this case, it may be conceded that he did not. An executor, unlike an administrator, derives all his interest in, and power over an estate from the will of the testator, and not from the letter’s testamentary granted by the ordinary.-'2 Bacon's Ah. Tit. Executors and Administrators, E. 14; and haring once elected to accept the administration, he can never afterwards divest himself of that character. Any act which would constitute him executor de son tort, as taking possession of tire goods and converting them to his own use, or disposing of them to another, or releasing debts due to the testator, and the like, is evidence of such acceptance) % Bacon's Ab. Title Executors and Administrators, E. 10. It follows, therefore, that, the fact of selling the negro in dispute to the defendant was an Assumption of the powers of an éxecutor and invested him with that character. But it is expressly laid down, that an executor may, before probate, possess himself of the goods of the testator.. He may pay debts and legacies and give releases for debts due-to the testator. He may, in his own name, maintain trespas'áj trover, or detinue, for goods which he has had in possession, and, as more strictly applicable to this question, he may sell, give away, or dispose of the property of his testator as lie pleases. Indeed with respect to his power oVer chatties which he has reduced to possession, I have been unable to find any limitation. 2 Bacon’s Ab. Title JExecuiors and Administrators, JE- 14. As executor he might, therefore, lawfully sell the negro to the defendant, even before the will was proved. It is true, the bill of sale to the defendant is in the name of Henry Harvey, without the addition of his character as executor, and this -circumstance has given rise to the question:

2. Whether this addition was necessary to transfer the right.

It is certainly a matter of convenience, which ought never to be lost sight of in conveyancing, to recite the authorities and exhibit the true characters in which the parties act; as they serve ' as indices to circumstances which it would be difficult to trace without them, at a distant period; but it is not indispensably necessary. The general rule is, that when one does an act which he cannot do so as to be effectual, otherwise, than by virtue of an authority, it shall be taken to be in exercise of that authority, although it he done in his own name; Parker, vs. Kett, 1 Salk, 95; and the good sense and sound policy of the rule, is clearly deducible from the consequences which would result from a different rule in the present case. Henry Harvey was in possession of the negro, which of itself was prima facie evidence of' property and consequently of the right to dispose of it, and had, as has been before observed, the legal right to do so; and it does not appear that the defendant was informed of the character in which he possessed these powers. If therefore' the concealment of his authority was sufficient to avoid the sale, the most detestable frauds might be practised, and it would lead directly to the ridiculous result, that one might dispose of property in his own name and recover it back in a representative character. There is one qualification of this rule, which has been thought applicable to the present case and which deserves consideration-It is, that where one has an interest and authority both, and does an act without reciting the authority, it shall be taken as done hy virtue of his interest. 1st. Salk, 95. The application of ibis principle is supposed to be derived from the circumstance, that Henry Harvey bad an interest in this property, expectant on the death of Paul Harvey Dudley, without issue; from whence it is concluded that the sale to the defendant should be taken in reference to that authority. It does not appear to me, that by the terms of the will, he, as legatee, even admitting the eoiitiugeucy'to have occurred upon which his interest depended, had any power over, or interest in the property itself. The devise, to use the words of the will, is of the “annual income,” and there is moreover an express prohibition to his disposing of any part of the property. There is another view which to my mind is equally conclusive. The bill of sale professes to convey to the defendant an absolute and unconditional property in the negro. The habendum is to him, “his executors, administrators and assigns, and to'their own proper use and behoof forever.” Give, therefore, to Henry Harvey, all the interest which he could, by the utmost liberality of construction, take as legatee under the will, and it falls far short of that lie has transferred to the defendant. The act done by him, was one which he could not do, so as to be effectual, otherwise than by virtue of bis authority as executor, and according to the general rule, it must be referred to that authority.

Note: It has been objected, with, some degree of earnestness, that the quest, lions on which the opinion of the court has been expressed, ought not to have entered into the case here,because they wore not made in the courtbelow,and perhaps it is due to the occasion, to express the view of the court on the subject. By the practice and rules of the court, we are precluded from .entering into the case-do novo, and it is true that this court will only hear the case that has been made on the circuit. But I apprehend that there has been a misapplication of them to the present case. The facts were clearly proved, and the, questions arising out of them, are regarded as decisive of the rights of the parties, and the objection rests solely on the circumstance that they were over-looked in the circuit court. In a trial on the circuit, it is expected that the counsel will bring to - the view of the court, all the points which are calculated to incline the scale on either side: but without intending to detract from the well deserved character of the bar for promptness and vigilance, 1 hazard little in saying, that few have had the conduct and management of a complicated and perplexing case, who have not on caW? fully reviewing the events of a trial on circuit, discovered that some little mat* ter has escaped his attention which might possibly have had its influence; and to permit an inadvertence of this sort to flx and control the rights oí the parties, Would work the most flagrant injustice. The rights of a party, so situated, stand, I think, even on higher ground. The court i‘s the counsel of both the partsesr and by it, the rules of law are to be applied to the case, arising out of tlie evidence; to restrain their perversion or misapplication on the one hand, and to supply a deficiency on the other; and to deny to this court the power of correcting inadvertencesor mhdahps, would be to pervert its oflice,from substantially administering the justice of the coantry, and make it merely the umpire of a contest of dexterity and promptness between the counsel.

Grimhe, for the motion,

Hunt, contra.

On these grounds, the court concur in the opinion, that a new trial ought to be granted.

Haf JVott, GolcocU & Gantt, Justices, concurred.  