
    ANN B. REA vs. WILLIAM L. RHODES & AL.
    In the ease of a legacy to one for life, remainder over, the assent of the executor to the legatee for life, enures to the benefit of the remainder-man, and vests in him a legal estate, which is liable to execution.
    The assent of the executor vests the legal estate in the legatee, though tho
    , executor may thereby commit a devastavit, and a creditor can only follow the property in a Court of Equity.
    It Is not necessary that an assent be expressly given or directly proved, for it 'may be implied from the acts of the parties, or the declarations of the executor, though not amounting simply to an assent. But the acts or declarations, in order to have that effect, must be such as are unequivocal, and satisfy the mind, that the executor meant to acknowledge the right of the legatee to the thing, and, of course, to determine his own title or control over it, in opposition to tho legatee.
    The cases of Hostler v. Smith, 2 Hay. 305, Alston v. Foster, 1 Dev. Eq. 337, and Knight v. Leake, 2 Dev. and Bat. 133, cited and approved.
    Appeal from the Court of Equity of Washington County, at the Spring Term, 1847.
    Arthur Rhodes made his will June 23rd, 1836, and therein gave to his wife, Amelia, his manor plantation, fifteen slaves, by name, with his household and kitchen furniture, (except a bed and furniture) and his stocks of horses, cattle, sheep and hogs, and his farming utensils, for her life ; and after her death he directed the land to be sold, and he gave the proceeds thereof and the said negroes to his son Edmund Rhodes, and. his grand-children, the children of his deceased son William Rhodes, equally to be divided between them, that is to say, one half to Edmund, and the other half to the said grandchildren. He also gave to his son, Edmund, six other slaves specifically, cud a bed and furniture. The testator appointed his wife the executrix and his son Edmund executor, aud died shortly afterwards. In November 1830, the will was proved, and Edmund alone qualified as executor. Mrs. Rhodes was an aged lady, between sixty and seventy, and quite infirm, and her son Edmund lived with her, as a member of her family, at the late residence of her husband, until her death. During that period the negroes continued on the plantation generally, though some of them were occasionally hired out, and the contracts of hiring were made by Edmund Rhodes, who was the executor of his father, and also managed his mother’s plantation for her. Edmund Rhodes was also the administrator of his deceased brother William, and his father, Arthur Rhodes, was his surety in that office. The children of William Rhodes were William L., Elizabeth, James E.. Joseph IT., and Franklin A.; and, as next of kin of their father, they instituted in May 1842, a suit by petition, against Edmund Rhodes for an account and payment of their distributive shares, and in August 1842, recovered $197 24, besides costs, and sued out ajfieri facias, and levied it on Edmund Rhodes, one half in remainder of the slaves left to his mother for life, and they were afterwards sold under a venditioni exponas on the 22d of July 1843, and the present plaintiff became the purchaser by Charles Latham, her agent.
    In March 1843, the present plaintiff also recovered a judgment for $2500, and costs, in an action at law, which she had instituted against Edmund Rhodes; and thereon she sued out a fieri fiadas, which was also served on the interest or half part in remainder of Edmund in those slaves ; and the sale by the sheriff, under which the plaintiff purchased, was made under this execution as well as that of William L. Rhodes and others before-mentioned. The sale was made at the residence of Mrs. Amelia Rhodes, and in the presence of herself, Edmund and William L. Rhodes. Afterwards, William L. Rhodes for himself, and as the guardian of his brothers and sister, who were all infants, instituted in February 1S44, an action at law against Edmund Rhodes in his own right, and as executor of his father on his bond, as administrator of William Rhodes deceased, assigning as the breach the non-payment of the hires of the negroes belonging to that estate for the year 1843, and which fell due at the end of that year and amounted to $128 11. No defence was made to the action ; but a judgment by default was entered and a reference to the Clerk to take the accounts. He did so, and reported that the sum of $126 11 was due, upon the admissions of the parties, Edmund, and William L., who attended before him; and at May term 1844, judgment was rendered therefor; and upon it a fieri facias was issued against the goods and chattels of the testator Arthur in the hands of the executor, and against the proper goods of Edmund Rhodes, and on the 16th of August, 1844, the whole of the negroes then amounting to seventeen, were exposed to sale as the goods of the testator Arthur, in the hands of Edmund Rhodes, the executor, and also the undivided half thereof as the interest, if any, of the said Edmund in those slaves, and were purchased by William L. Rhodes for the sum of $144 35. This last sale took place a month after the death of the testator’s widow which occurred in July 1844; and, since his purchase, William L. Rhodes has been in possession of all the negroes.
    The bill was filed in September 1844, against William L. Rhodes, Edmund Rhodes, and the other children of William Rhodes, deceased, and it states, that, soon after the testator’s death, Edmund Rhodes paid off all the debts of the testator and assented to the legacies in the will to himself and to his mother, and the other remainder-men, and that Mrs. Rhodes had the possession and enjopment of the negroes, as tenant for life, up to the sale to the plaintiff in July 1843 : That at that sale the negroes were offered, with an express reservation of the life estate of Mrs. Rhodes, derived under her husband’s will, and that the interest of Edmund Rhodes was sold as a remainder dependent upon that life estate; and that, although Mrs. Rhodes, Edmund, and William S. Rhodes, were all present, neither of them made any objection to the sale in that mode or intimated that the negroes were held or claimed by Edmund as executor: That so far from setting up any .such pretence, the said William was having them sold under the execution of himself and others on their first judgment, as the property in remainder of Edmund Rhodes, and Edmund Rhodes himself applied to persons not to bid for the negroes, but to allow William L. Rhodes to purchase them without competition, and that, upon that request being refused by the plaintiff’s agent, William L. Rhodes demanded that, to the extent of his execution, which was the elder, the sale should be for specie: And that after the said sale the negroes went back into the possession of Mrs. Rhodes-who claimed them, as before, as tenant for life, with the knowledge and approbation of Edmund, and held them during her life. The bill further states, that the subsequent suit and judgment against Edmund Rhodes for the hires of the negroes of his intestate, William Rhodes, for 1843, was a contrivance of Edmund and William L. Rhodes to baffle the plaintiff, by having the negroes sold, under color of an execution against the estate of the testator Arthur, as some ground for pretending that the executor had not consented to the gifts of them in the will: That the whole of those hires amounted only to $126 11,-for which the judgment was taken; and that in fact William L. Rhodes was the hirer of some of the negroes for 077, which he never paid, and that Elizabeth Rhodes hired others to the value of 034, which was paid by keeping other negroes of the estate that were chargeable, and that no reduction was made therefor or claimed before the clerk.
    The prayer is for a discovery of the negroes and their increase-, and a partition, by which one-half shall be laid off and delivered to the plaintiff, and, in the mean time, 
      for reasons stated in the bill, for an injunction against the removal of the slaves out of the State.
    The answer of Edmund Rhodes states, “ that, soon after he qualified as executor, he paid all such demands as were, to his knowledge, then outstanding against his testator, without a sale of any negroes.” He “ denies ever having announced his assent or assented as executor to the life estate in the negroes to Amelia, the tenant for life in said will ; but says that they lived together at the late residence of the testator, at which place, the negroes not hired out, were employed by this defendant upon the farm: He says that the proceeds of those hired out, were collected by him as executor, and appropriated to the wants of the farm during the life of his mother, and that she derived her support from the income of the property bequeathed to her during- her life ; he denies, that the negroes were surrendered by him into the possession of said Amelia, and that she exercised any greater control over them than she did prior to the testator’s death:” lie states, "that up to the sale to the plaintiff, the negroes had been in his continued possession, and that he, at that time, claimed to hold them as executor, and that, to the best of his knowledge and belief, he stated to the sheriff, and to Charles Latham, the plaintiff’s agent, that he was in advance for the estate, and looked to the negroes to be re-imbursed.
    The defendant denies any fraudulent combination with William L. Rhodes, or contrivance to defeat .the plaintiff’ of her purchase by the second suit and judgment obtained against him in May 1844, and says the proceeding was bona fide. lie says, that he had hired ouCthe negroes for 1843, and that after William L. Rhodes was appointed the guardian of his brother and sister, in the summer of 1843, he demanded payment from this defendant, which he was unable to make in consequence of pecuniary embarrassments ; and that his reason for hot defending the suit was, that he really owed the sum reported by the Clerk upon his admission. He admits, that Elizabeth Rhodes hired negroes that year for #34, and that the same was charged against him in the suit, though that sum was not paid to him but was satisfied by an allowance to her for keeping other negroes ; and he admits that William L» Rhodes hired some of the negroes himself for #77, which was charged against the defendant, though it had not been paid to him ; and he says that said William L. gave his note therefor, “and that said note has been long since passed off by this defendant.”
    The answer of William L. Rhodes, after admitting the bequests in the will, the names of the negroes, &c. states, that Amelia and Edmund Rhodes lived together, and that the latter, so far as he knows or has reason to believe, exercised the sole control over the slaves, and, as he has understood, hired some of them out from time to time and took notes for the hire to himself, and that the defendant does not know of any assent by Edmund, the executor, to the legacy to his mother, nor act of possession or ownership on her part, inconsistent with his possession as executor. He admits that he, Mrs. Rhodes, and Edmund Rhodes were present at the sale under the executions, in favour of the plaintiff, and of himself and brothers and sister against Edmund Rhodes, and the interest of Edmund in the negroes, was set up, and sold as charged in bill ; and that he set up no objection to the sale, as does not know that he was called upon to do so. But says, that he has since understood and believes, that Edmund did, on that day, state to the sheriff and the plaintiff’s agent, Latham, that he claimed to hold the slaves as executor of Arthur Rhodes. And this defendant insists thereupon, that the plaintiff acquired no title her purchase, because Edmund Rhodes had not assented to the legacy to himself and therefore held as executor.
    He denies, that he applied to any person not to bid against him, so as to let him buy the negroes for the amount of his execution, or that Edmund Rhodes made such application with his knowledge or assent; and he admits that he demanded specie, and insists that, as he had a right to do so, it furnishes no evidence of any fraudulent purpose. With respect to the institution and prosecution of the suit last brought by him for himself, and his brothers and sister, he gives much the same account the other defendant does : excepting only, that he says, that, soon after he was appointed guardian in 1843, he applied to Edmund Rhodes for a settlement, and receiving no satisfactory answer, he then applied to counsel, “to know if there was any way to secure the negro hire for 1843, to himself and his wards, and was instructed that he could do nothing until the end of the year, but that then he should again demand n settlement, and upon refusal bring a suit on the administration bond — which he accordingly did, without the agency, concert, or request of Edmund Rhodes:” And excepting further, that in respect to his own note for $77, for hires of that year, this defendant says, “where said note was, at the time of instituting said suit he does not know, nor does he know who is now” (March 14th, 1845,) “the holder of it, but supposes that it has been long since passed by said Edmund for his own purposes.”
    The answers of the other defendants — those who are still infants, answering by William L. Rhodes, as their guardian — are not material, as they say they have no personal knowledge of the matters in controversy and leave the plaintiff to her proof.
    Upon the proofs it appears, that Mrs. Rhodes owned no land nor negroes, besides those left to her by her husband. She was old and infirm, and left the management of the plantation .and the transaction of her business generally, to her son Edmund, who resided with her. He generally gave in her property, as well as his own, for taxes. The tax.lists for all the years from 1836 to 1844, both inclusive, are filed, except for the years 1840 and 1841. In 18S6, Edmund Rhodes listed for himself one white poll, and nothing more; and he listed “for the heirs of Arthur Rhodes 447 acres of land, and seven black polls.” In each of the other years, he gave in for his mother the land and black polls, varying in number from four to eight; and generally increasing. During that period, he gave in no list as executor of his father, and never more than one black poll for himself, and generally none.
    A witness, Latham, states that he attended the sale in July 1843, as the plaintiff’s agent, and was asked by Edmund Rhodes, privately, whether he had come to bid on the property, and upon being told, that he had, Rhodes said it was a hard case to be broken up by an unjust verdict, and remarked that there would be no sale unless the witness bid. But the witness told him, that he must bid, and then Edmund Rhodes said to him, “ there is a small execution against me older than Rea’s, and, if you will not bid, the plaintiff in that execution can purchase the property.” But the witness informed him, that he could not consent; and the negroes, that is, one-half of them in remainder after the death of Amelia Rhodes, being the share of Edmund Rhodes, were.put up and purchased by the witness, as the agent of the plaintiff. Neither in that private conversation, nor in any public declaration, did Edmund Rhodes, or any other person make an objection to the sale of his half of the negroes, subject to the life estate of Mrs. Rhodes. To the question by the defendants, whether Edmund Rhodes did not say, on that day, that Arthur Rhodes’ estate was indebted to him and that he would hold on to the property, as executor, until he was paid, this witness, and the deputy sheriff, who sold the negroes, answer that nothing of the sort occurred, according to their recollection.
    The defendants examined the sheriff of the county, and asked him, whether, on the day of sale, Edmund Rhodes did not claim the negroes as the executor of his father, and object to the sale of them : To which the witness replied, that he made the sale, at which William L. Rhodes purchased, and that, upon that occasion, Edmund Rhodes stated that the negroes were the property of the testator, and that the estate owed him, and had never been settled: That, at the sale at which the plaintiff bought, the witness was also present, and he thinks Edmund Rhodes made some objection to the sale of the negroes, but what the objection was, witness is unable to say.
    The defendants examined several other witnesses for the purpose of shewing that Edmund Rhodes had the possession of the negroes,.and claimed to control and dispose of them as executor. '..A physician says, he attended some of the negroes for two years at Mrs. Rhodes’ and was told by Edmund to charge him as executor of his father, and he at different times received payment from Edmund., But he does not mention the years when he attended. "Others prove that Edmund managed the plantation or farm and the negroes that were on it, and that he sometimos hired some of them out. But the witnesses generally state that they are unable to say, whether, in so doing, he acted as executor or as agent for his mother. None of them say, that there were regular annual hirings of the slaves ; but occasionally they were hired for short periods by private contracts, or, rather, some of them. To a person who applied to Mrs. Rhodes in 1840, or ’41, to hire a negro for a few days, she replied, that she “ had nothing to do with the negroes and horses, and that he must go to Edmund.” Another witness, being asked, whether Mrs. Rhodes did not express the wish that Edmund would give up the negroes to her? answers, “I do not know that I heard her say ‘ give up the negroes,’ but I heard the old lady say, that if Mr. Rhodes would give up to her, she would manage things differently from what he did.” And some of the defendants’ witnesses testify, Uiat, in some of the hirings of negroes, Edmund Rhodes took notes payable to himself, and sometimes payable to him as executor. One of the witnesses, who hired a negro, says, that he gave the negro up at the request of Edmund, who said his mother wished it.
    _¡i. Moore and Heath, for the plaintiff.
    
      Badger, for the defendants.
   Ruffin, C. J.

The case turns on the question of assent by the executor to his own legacy. He might give it either directly or to the first taker, and that would enure to him in succession. If he didagggp^sygf^nterest in remainder became subject to him; Knight v. Leake, 2 Dev. & Bat. 733 ; and tfra piegroes could not afterwards be sold umiea tbe bonis testatoris. 'For it is settled, thJrinea,ss"ent off theiexecutor passes the legal property toph°WSh the executor may thereby commit fóvastavit, and¿#creditor may follow the property in equity. Hortner v. Smith, 2 Hay. 305. Alston v. Foster, 1 Dev. Eq. 337. It is not, therefore, material to the rights of the plaintiff in this case, to determine the character, in point of good faith, of the subsequent suit, judgment, and execution under which William L. Rhodes purchased. It was proper enough to make it a part of the bill, in order to have all the rights of every class of claimants passed on. The true character of the transaction can indeed hardly be doubted, notwithstanding the answers. No counsel could have advised, that next of kin could not by a bill compel an insolvent and unfaithful administrator to bring in securities belonging to them and restrain him from parting from them to others. It is obvious, that the remedy on the administration bond was the real object ; probably under an impression that the assent of the executor, and the purchase of the plaintiff under an execution against him, might be avoided by a sale for a liability of the testator, the original owner of the negroes. William L. Rhodes says, he thought it his duty, after he became guardian, to secure the hires for 1843, for his wards and himself, and therefore brought the action on the administration bond under the advice of counsel. But that is a most extraordinary statement, leading to this conclusion : that for the purpose of securing the sum of $126 11, he would sell seventeen negroes, as the property of the testator, and thereby defeat a gift of one half of them to himself and his wards. It is true that he purchased, and therefore would not be loser ; but what becomes of his duty, of which he speaks, to the infants, who owned four fifths of that half? The impression, therefore, cannot but be very strong, that the parties fabricated the claim for the occasion, by not allowing the proper credits for the debts of William L. Rhodes, and for the charges for keeping some of the negroes, so as to overreach the plaintiff’s purchase, as they supposed. But in that they were mistaken, if the executor had assented to his legacy; since in that case the plaintiff got a good title to one half the negroes, and would be entitled, at all events, to a partition against the owner, or owners of the other half, whether the ownership be in William L. Rhodes alone, or in him and his brothers and bis sister under the will. Upon the question of assent, we think there is no doubt, either in point of fact or law, that there was one. It is not necessary, that it should be expressly given, or directly proved; for it may be implied from the acts of the parties, or the declarations of the executor, though not amounting simply to an assent. But the acts or declarations, in order to have that effect, must be such as are unequivocal, and satisfy tbe mind, that the executor meant to acknowledge the right of the legatee to the thing, and, of course, to determine his own title or control over it, in opposition to the legatee. When the executor delivers the legacy to the donee, as his, the act is unequivocal. So a long enjoyment of the legatee, with the knowledge of the executor, is the highest evidence of such delivery, and of the purpose of it. Here, the enjoyment was in the legatee for life, for about seven years before the sale, at which the plaintiff purchased. It is true, the residence of the executor with his mother, might make that circumstance, in itself, somewhat ambiguous, if there appeared to be any reason, upon which it could be supposed, the executor ought, or would have wished to hold the property as executor. But there was nothing of that sort in the case. For the interference of the son with the negroes, either in superintending their labour on the farm, or occasionally hiring some of them, is rather to be referred to his wish to serve his mother, with whom he lived, and of all whose affairs he took the charge on account of her sex, age and infirmity, than to his rights or duties as executor. It is so, because there were no known debts of the testator unpaid : the negroes, as negroes belonging to an estate usually are, were not regularly hired, and accounts kept by the executor of their hires as parts of the estate ; but most of them were worked on the mother’s plantation, with which, as executor, the son had nothing to do, and from the profits of their labour on the mother’s land, as well as the small hires that were received, the mother and her family were supported. It is true, the answer of Edmund Rhodes denies positively, that he had either announced or given an assent to the legacy to his mother or himself. The Court could not, indeed, look at that as evidence between the other parties ; but each party read it, and commented on its bearing on this point, and therefore the Court is to treat it as they did. We think however, notwithstanding the positive denial of the assent, in terms, that the answer itself shews very strongly, that it had been given ; for the denial may be only of what that defendant deemed an assent, which is matter of law to a considerable extent, and about which he might be mistaken ; while the facts, that under his own management the negroes had been employed on his mother’s farm, or hired out for her benefit for seven years after the debts of the testator had been, or were supposed to have been, paid, (which are found in the answer,) are of a character that precluded all danger of mistake on his part, and tend clearly to establish his understanding and admission, that the negroes were his mother’s for life, and then in her enjoyment as such, and that is in law an assent. But, if it were allowable to doubt on that state of the case, the acts of the executor, in listing the negroes for taxes, make the matter plain. He listed them in that character but one year ; and af. terwards when he gave in his own list, he gave in that of his mother, and every year included these negroes as hers and in her name. It may be true, that she was liable for the taxes of the negroes, as the possessor of them, although they might not be her property.

But the defendant by using that argument gives up the point; for the question is, whether the possession was in her as legatee, or in the son as executor. He denies that he assented to the legacy or parted from the possession, and says that he held some, and hired out the others as executor. Now, there is no pretence that his mother hired any of the negroes from him. Therefore, if she was liable as possessor, for the taxes, she must have got the possession in some other way; and that could only have been as legatee. Such acts of an executor are not like a congratulation of the legatee upon his legacy upon opening the will. They could proceed through such a course of years, only from a settled purpose in the executor to recognise the negroes as the property of the legatee, when he thus subjected her to the charge of the taxes on them from year to year. But the inference, from the circumstances already mentioned, is rendered irresistible, when to them is added the conduct of the mother and son, and also of the defendant William L. Rhodes, at and after the first sale of the negroes by the sheriff.

An undivided half of them in remainder after the life estate of the mother was offered and sold, «5 the interest of Edmund Rhodes de bonis propriis; and after the sale the negroes went back into the service of Mrs. Rhodes, as tenant for life, and under the management of Edmund for the benefit of his mother, as before ; and for the next year he again gave them in for taxes, as hers. If all those persons thus acquiesced as to the nature of their several interests, it comes very much to the same thing, as if Edmund Rhodes had purchased from his mother her life estate eo nomine, or in like manner sold his remainder. Lamphet’s case, 10 Rep. 47, 52. The defendants state, that Edmund Rhodes did object to the sale. But the Court is not at liberty to act on that statement as true. In the first place, why should he ? He says his reason was, that the estate was in debt to him. But there is no evidence of that, but every reason to think otherwise. Besides, it is difficult to believe, that any objection could have been made known, since even William L. Rhodes did not hear it; for he answers upon that point, not on his knowledge, but upon subsequent information. One witness is under the impression that he did hear Edmund Rhodes make an objection of some kind to the sale, but he is unable to state his words or even the nature of the objection. But if such a thing had occurred, it must be supposed that William L. Rhodes and many others, out of such a crowd as usually attends a sale of so many negroes, would have heard it. So far from it, two witnesses, and those most likely to be cognizant of all that passed, tho officer who sold, and the plaintiff’s agent, swear, that nothing like it was said in their hearing: but, on the contrary, the latter states, that Edmund wished the remainder in the negroes sold as his, under the execution of his nephews and niece, and expressly requested the witness Latham not to bid, in order that William L. Rhodes might buy them in. If this, per se, were not an assent by implication, it at least, conclusively removes any ambiguity that might possibly rest on the other circumstances. The Court must therefore declare, that the defendant, Edmund Rhodes, as executor of the testator Arthur, did assent to the legacy of the negroes given in the will to Amelia Rhodes, for her life, and after her death, given, the one half to himself, and the other to the children of William Rhodes, deceased; and that when the negroes were seised under the executions against the property of Edmund Rhodes, in favour of the plaintiff and of William L. Rhodes and others, and at the sale thereof by the sheriff to the plaintiff, on the 22d of July, as mentioned in the pleadings, Mrs. Amelia Rhodes held them as legatee and tenant for life, under such bequest and assent, and that the remainder, in one undivided half of them, was then vested in and claimed by the defendant Edmund Rhodes as legatee, and not as the executor - of his father’s will.

Therefore, the plaintiff is entitled to half of the slaves and of their increase, and also of the profits of them sinee the death of Mrs. Rhodes. The Court of course does not undertake to determine in this cause between the defendants, as to the right to the other half of the negroes— with which the plaintiff has no concern. There must, therefore, be the usual decree for the production of the slaves and their division as here directed; and for an account of the profits and expenses of the negroes sinee Mrs. Rhodes died.

The defendant William L. Rhodes must pay the costs of the plaintiff up to the present time.

Ym, Curiam.

Decree accordingly»  