
    *Nelson’s Adm’r v. Cornwell.
    October Term, 1854,
    Richmond.
    (Absent Allen, P.)
    1. Equity Jurisdiction—Specific Legacies—Delivery of. —Courts of equity have jurisdiction in all cases to compel the delivery of a specific legacy by the executor.
    2. Specific Legacies—Assent to—Refunding Bond.—Though an executor may have assented to a specific legacy, he does not thereby dispense with a refunding bond.
    3. Same—Same—Same—Waiver of.—If the executor has assented to a specific legacy and waived a refunding bond, the legatee may maintain an action at common law against the executor for its recovery: But the intention to waive the refunding bond must be very clear.
    4. Equity Practice—Parties -Case at Bar.—in a suit by a residuary legatee against the representative of two estates, in which it is contended that property specifically bequeathed by one testator is the property of the other estate; Queers, if the specific legatee is not a necessary party: and therefore whether not having been a party, the record of that suit is evidence against him.
    5. Same -Cause Heard on Bill, Answer and Exhibits— Record—Quaere.—A cause is brought on to be heard upon the bill, answer, exhibits and award; Queers, if the deposition and commissioner’s report are a part of the record, and evidence as such in a case in which the record is evidence.
    6. Executors and Administrators—Submission of Matter to Arbitration —Devastavit.—An executor, though he has authority to submit a matter to arbitration, yet is responsible as for a devastavit, if by the award his testator’s estate is injured.
    7. Same—Same—Same.—An executor making an improvident submission to a ward, as to a part of his testator’s estate which has been specifically bequeathed; and the result of the submission being that the property is left in his hands as his own property, and he is compelled to pay for it, the legatee is not precluded by the award from recovering the specific property.
    8. Same—Holding'Specific Légacy—Statute of Limitations.—The statute of limitations cannot har the legatee’s claim to his specific legacy, whilst it is held as such by the executor, though he had long before assented to the legacy.
    9. Same—Same—Same—Case at Bar.—A delay of seventeen years by a specific legatee to sue for his legacy, held under the circumstances not to har his claim.
    Jesse Cornwell of the county of Prince William, died in 1805, leaving a will, which does not seem to *have been recorded until August 1813. By his will he gave to his wife Constance Cornwell, the whole of his estate whilst she remained his widow. But if she should marry again, or upon her death without marrying, his whole estate, after the payment of his debts, was to be divided equally amongst his children : And he appointed her and his son Gustavus his executors.
    At Cornwell’s death he left five children, his son Gustavus who died in the life time.of his mother, intestate and unmarried, and four daughters, Nancy who married Nehemiah Brockley, Hydia who married Cornelius Hoff, Catharine who married first Petty and after-wards John Appleby, and Kitty Cornwell.
    Constance Cornwell took possession of the estate and paid the debts, and seems to have divided some of the slaves among the four daughters during her life. In April 1810 Cornelius Hoff executed a paper by which he acknowledged the receipt of a slave named Martin and a horse, which, with what he had before received, was in full of the interest of his wife in the estate of Jesse Cornwell; and Gustavus Cornwell purchased the interest of Brockley in the estate.
    Some six or seven years after the death of Jesse Cornwell, Constance Cornwell purchased of her father a negro girl named Prucy, then about ten or twelve years old, for two hundred dollars; and some three or four years after this purchase, she sold a negro man named Juba, belonging to her husband’s estate.
    In 1825 Constance Cornwell died, having made a will, which was admitted to record in the County court of Prince William; and Thomas Nelson qualified as her executor; and at the same time qualified as administrator de bonis non with the will annexed of Jesse Cornwell deceased. By her will Constance Cornwell bequeathed to her grand son John Cornwell, the oldest son of her daughter Kitty Cornwell, the following slaves, viz : Hetty, Prucy and her two children ^Elizabeth and Albert, and the increase of the females forever, and also a horse: And she directed that he should not sell any of the slaves or their future increase ; and if he attempted to sell them, they were to be free. And she directed that the proceeds of the sale of her stock, after paying her debts, should be retained by her executor, and applied to the use of the slaves until John Cornwell came to the age of twenty-one years ; at which time the slaves were to be delivered to him by the executor. The remainder of her estate she directed to be sold and divided among her four daughters.
    The personal estate of Constance Cornwell, including the slaves and horse given to John Cornwell, was appraised at five hundred and seventy-nine dollars and forty-eight cents. Prucy and her children, of whom there were then three, were appraised at four hundred and fifty dollars, and Hetty was appraised at ten dollars. There was also a small tract of land, which was sold by the executor in 1833, to Catharine Petty, for one hundred dollars. The estate of Jesse Cornwell, which came to the hands of the administrator, was a slave named Prank, appraised at three hundred and twenty-five dollars, and Betsy and her two children, who were in the possession of Catharine Petty, and were claimed by both herself aud Kitty Cornwell; and there was then a suit pending by the latter against the former for the recovery of them ; which suit went off in 1834.
    In June 1828 Kitty Cornwell, Brockley and wife, Catharine Petty and Cornelius Hoff entered into a covenant with each other to submit their rights in the estates of Jesse and Constance Cornwell, to arbitration ; and on the 5th of December 1829 the arbitrators made their award. They decided that Constance Cornwell had no right to dispose of the property disposed of by her will, and that it should *be considered as the property of Jesse Cornwell’s estate. That Hoff and Brockley were not entitled to any further portion of Jesse Cornwell’s estate. And treating the property mentioned in the inventory and appraisement of both estates, as belonging to that of Jesse Cornwell, and deducting from the amount of the whole, the probable worth of Betsy at the age of fourteen years, two hundred dollars, and the further sum of two hundred dollars to which the children of Betsy were appraised, and the further sum of six hundred dollars, to which Gustavus Cornwell was entitled, so as to equalize the advancements to Mrs. Petty and Kitty Cornwell, they divided the balance into four parts, of which they gave to each of these one part, and directed that the other two parts should be divided among the four surviving children of Jesse Cornwell, as heirs of Gustavus Corn-well.
    In 1835 Kitty Cornwell instituted a suit in equity in the Circuit court of Fairfax against Kelson, Hoff and wife, Brockley and wife, Catharine Petty and others, for the purpose of enforcing the award of the 5th of December 1829, and also of enjoining a judgment recovered against her by William J. Weir, as assignee of Kelson, on a bond given by her to Nelson for one year’s hire of the slave Prank belonging to the estate of Jesse Corn-well. In her bill, after stating the foregoing facts, and that under the award she was entitled to Betsy and her children, then four in number, she charged that Nelson had become possessed of these slaves, then as she believed worth two thousand dollars, and that she was entitled to a share of the other estate in his hands. That she had not been able to obtain from Nelson any part of the property. That pending these questions as to the right of property in Jesse Cornwell’s estate, Nelson had hired to her one of the slaves belonging to the estate, for the sum of forty dollars, for which she had *given her bond, bearing interest from the 1st of January 1831, which he had passed away, so that it had come into the hands of William J. Weir, who had obtained a judgment upon it. That there were no debts of Jesse Cornwell to be paid, and she was about to be compelled to pay the amount of this bond given for the benefit of the estate to which she was herself entitled.
    She further charged that Nelson had taken possession of the slaves Betsy and her children, and had them appraised as apart of the estate of Jesse Cornwell; and that by some fraudulent combination between Nelson, Catharine Petty and John Appleby, who claimed one of the children, to deprive the plaintiff of her just rights, the said slaves had been sold and carried off to the south.
    The prayer of the bill was for a settlement of Nelson’s accounts as administrator of Jesse Cornwell’s estate, and that he might be compelled to pay her the amount due to her from said estate ; and that Williams, one of the parties made defendants, might be enjoined from paying away the purchase money of said slaves until the further order of the court; and for general relief. An injunction was awarded accordin g to the prayer of the bill; but was afterwards dissolved as to the judgment obtained by Weir.
    Catharine Petty answered, denying the validity of the award, on various grounds, one of which was, that Constance Cornwell by her will left property to a considerable amount, which it was contended she had acquired after the death of her husband, to a certain John Cornwell, and that this property was decided by said arbitrators to be divisible among the parties to the award, when John Cornwell was no party thereto, and not bound by their decision.
    That as to Betsy and some of her increase, she had held adverse possession of these slaves more than five *years before the institution of this suit, and thus independent of any other pretension, had acquired a perfect title to them. That the property of Jesse Cornwell not having been distributed at the death of Constance Cornwell, the complainant had hired the negro man Prank from Nelson, and had not paid any of her bonds for the hire since 1827 ; and had finally, as respondent was informed and believed, sold the said slave to a trader ; that the said slave would have sold for eight hundred dollars ; and thus the complainant had received a proportion of the estates of Jesse and Constance Cornwell greater than she would have been entitled to upon an equal division of the estates. She admits she sold the slaves Betsy and her children for one thousand five hundred dollars.
    Nelson also answered the bill. After referring to the death of Jesse and Constance Cornwell, he stated that Constance Cornwell by her will, amongst other things, bequeathed to her grand son John Cornwell a slave called Prucy and her children, and the increase of the females of them ; also a horse ; with a proviso, that he should not be at liberty to sell the said slaves ; and that if he attempted to do so, they should be free. And he stated the other provisions of the will. He alleged that the slaves Prucy and her children were the absolute property of Constance Cornwell in her own right; and were not held or claimed by her under the will of her husband.
    He further states that the complainant had hired the slave Prank from him, from 1827 to 1835, and had never paid the hire; and that she had fraudulently sold him, and he had been sent out of the state. That Catharine Petty had gotten possession of Betsy and of one child she then had, and afterwards sold her and her four children, to some person unknown to him, by whom they were removed from the state : And he ^denies that he was in any manner accessory to said sale.
    He further states that he had settled his accounts of administration upon both the estates of Jesse and Constance Cornwell; and that he settled with Hoff and Nancy Brockley for their shares in both estates, and had their receipts. That charging the complainant with the hires of Trank and his value, she will be found largely a debtor to the estates ; and that he is ready to settle with Catharine Petty.
    He said that he had no personal knowledg-e of the award mentioned in the bill, but insisted it could not extend his liabilities; and having been founded on a gross error of fact, it was not obligatory even on the parties to the submission. That as to the land held by Constance Cornwell in her own right, and as to the slave Prucy and her children, and the horse devised to her grandson John Cornwell, who was yet alive, her will was in all respects valid. And the arbitrators had by their award, under a mistake as to this fact, taken away the property devised to John Cornwell, who was no party to the submission, and had adjudged it to others. And he insists that for this and other reasons the award is void.
    In May 1837 the court made a decree directing Nelson to settle his accounts of administration on the estates of Jesse and Constance Cornwell before a commissioner of the court: And it was further ordered that said commissioner take any and all such evidence as either party may require, and report the same to the court. At the May term 1838 the report of the commissioner was recommitted, and he was directed to enquire what portions of the slaves or other property in the proceedings mentioned, belonged to the estates of Jesse and Constance Cornwell, respectively ; what amounts in money or property had been received *by the respective legatees; that he settle accounts between said legatees, and that he equalize their shares of the same as near as may be, according to their respective rights and interest.
    At the May term 1842 an order was made by consent of parties, that the matters in dispute between the parties be referred to Alger-non S. Tebbs and Ferdinand D. Richardson, with umpire, whose award or the award of such umpire, should be final. And on the 8th day of June 1844, the cause came on to be finally heard upon the bill, answers, exhibits and the award of A. S. Tebbs and T. D. Richardson, which was filed at the preceding term of the court; and no exceptions having been taken thereto, it was decreed that the said award be confirmed, and that the complainant Kitty Cornwell recover of the defendant Thomas Nelson, the sum of four hundred and seventy-four dollars and sixty - four cents, with legal interest on three hundred and fifty-eight dollars and twenty-two cents, a part thereof, from the 1st of October 1843 till paid, and the costs of this suit; and that the said Thomas Nelson recover of Catharine Appleby, formerly Catharine Corn-well, the sum of three hundred dollars, with interest from the 14th of October 1843, without costs.
    There is a memorandum of the clerk, made in the foregoing cause, that the award referred to in the foregoing decree, is not now among the papers in the cause ; the same having been lost or taken from the bundle.
    The report of the commissioner in this cause does not appear ; but there are a number of depositions, exhibits, &c., which the clerk states is a part of the record in the cause, and were referred to and returned with the commissioner’s report. These depositions generally related to the slaves Trank and Betsy and her children ; but there were some of them which related *to Prucy and her children. Although there was some contradiction in the testimony, yet it was clear that Frank had been carried off and sold in 1835, and that Kitty Cornwell had received the purchase money : How much that was the evidence did not disclose ; and the estimate of his value varied from three hundred and fifty dollars to eleven hundred dollars. Prucy and her six children were valued at that time by two witnesses at one thousand seven hundred and twenty dollars. A witness, who was called on by the commissioner, speaks of them as being of very light complexion ; some of the children would be taken to be white, and they were generally delicate. They were valued at small prices, on account of their complexion and health.
    In a memorandum of notes of the evidence and points in the cause, returned by the commissioner with his report, it is stated that Nelson was indebted as administrator and executor, on the 1st of May 1838, four hundred and eleven dollars and twenty-four cents of principal, and two hundred and four dollars and sixty-six cents, interest to that date. Up to that time he had advanced to Catharine Petty two hundred and ninety-eight dollars and thirteen cents of principal, and seventy-four dollars and five cents of interest, and to Kitty Cornwell three hundred and nineteen dollars and seventy-seven cents of principal, and one hundred and twenty-two dollars and ninety-six cents of interest. He estimates the value of Trank, when sold in 1835, at one thousand dollars; and-Betsy and her children, at same time, at one thousand five hundred dollars. Of Prucy and her children, he says, they cannot be brought into this controversy, John Cornwell not being a party ; and Kitty Cornwell makes no claim to them in her bill or otherwise, except that she has taken some evidence leaning that way. These slaves are in the possession of Thomas Nelson the defendant.
    *Thomas Nelson died in 1845, and John C. Weedon qualified as his administrator. Prucy and her children having been in the possession of Nelson at his death, Weedon took possession of them as a part of his estate: He sold two of the children to a trader, who took them to Washington city; and in June 1847 John Cornwell, then living in Georgetown, instituted proceedings to recover them, as belonging to him under the will of Constance Cornwell.
    In July 1847 John Cornwell instituted this suit in the Circuit court of Prince William, against Weedon, to recover Prucy and her other children. In his bill he set out the bequest to him by Constance Cornwell, of the slave Prucy and her children, to be delivered to him when he attained to the age of twenty-one years; the taking possession of the slaves by Nelson as her executor, the death of Nelson without having delivered the slaves to him, that the estate of his testatrix was not indebted or the debts were all paid; that Weeden had sold two of the slaves, and the plaintiff apprehended he would sell the others, and have them sent off to the south. And stating their names, he said that he could not prove that Nelson had ever assented to the legacy, or that all or which of the slaves were in the possession of Weeden. He calls upon Weeden to say in whose possession the slaves are; and he prays for an account of their value and profits since the death of Constance Cornwell; for a delivery of them to the plaintiff; and for general relief.
    Weedon demurred to the bill for want of equity, and because a personal representative of Constance Cornwell should have been made a party. He also pleaded the statute of limitations; and answered. In his answer he says that he has been informed that Prucy and her children were not the property of Constance Cornwell, though she may have attempted to dispose of them by her will; and he calls for strict *proof of the fact that they were hers. He says further that Nelson made an effort to assert his testatrix’s title to said slaves, but without success, and that they were held to be the property of Jesse Cornwell’s estate, and that Nelson had been compelled to account for them as such. That Prucy and her children belonged to Nelson in his life time, having been, as he was informed, accounted for by him to the legatees of Jesse Cornwell’s estate, as part of that estate; and after Nelson’s death they came into defendant’s possession; and two of them had been sold by him to pay Nelson’s debts. That the slaves had been kept openly by him as a part of Nelson’s estate, and he had never heard of any claim set up to them by the plaintiff until the month of January 1847. He insisted further that the plaintiff was a free negro or mulatto, and therefore had no right, since the act of March 15th, 1832, to maintain any action or suit in equity for the purpose of recovering or otherwise acquiring a permanent ownership of any slave in any of the courts of the state of Virginia. And further, that the plaintiff having slept upon his rights for more than twenty years, was not entitled to the aid of a court of equity, after the death of Nelson, and the loss of proof by death of witnesses and otherwise, for the purpose of asserting any demand under Constance Cornwell’s will.
    A number of witnesses were introduced by the plaintiff, who testified as to the purchase of Prucj', then a girl of ten or twelve years of age, by Constance Cornwell; and that she and her children were always claimed by her and considered as her own property. Some of them also testified to the admissions of Nelson, , up to a short period before his death, that the slaves were the property of John Cornwell; and that he held them for him. The credibility of some off these witnesses was assathed by the defendant; and *witnesses were introduced by both parties, whose opinions as to their character for veracity differed.
    It appeared that the plaintiff was the son of Kitty Cornwell, and was a mulatto. He attained the age of twenty-one years in 1830; and in 1828, when a minor, he received from Nelson the value of the horse left him by Constance Cornwell, and left the state; and, so far as the record shows, was not heard of again until 1839, when he was living in Georgetown in the District of Columbia, where he has continued to live ever since. It appeared too that Prucy herself was a light mulatto, and her chil-. dren were very light mulattoes, some of them showing scarce a trace of negro blood ; and it seemed that the children were the children of Nelson. The other facts appearing in the cause have been already stated, except the evidence of A. S. Tebbs, one of the arbitrators upon whose award the decree of the 8th of June 1844, in the case of Kitty Cornwell against Nelson and others, was founded. His testimony is stated by Judge Moncure in his opinion.
    In the progress of the cause the personal representative of Constance Cornwell was made a defendant, and the case was removed to the Circuit court of Spotsylvania.
    The cause came on to be heard on the 24th of May 1852, when the court overruled the demurrer and plea, and made a decree in favor of the plaintiff for the slaves in controversy, and for an account of profits. And from this decree Weedon applied to this court for an appeal, which was allowed.
    Patton, for the appellant.
    Heath and Neale, for the appellee.
    
      
      Executors and Administrators—Assent to Specific Legacy—Refunding Bond.—The intention to waive the refunding bond must be very clear, and it will not be inferred from a mere assent to the legacy, because the executor may be willing to assent to a legacy, and even to hold it for the benefit of the legatee, and still not willing to part with the possession of it without a refunding bond. Whitehead v. Coleman, 31 Gratt. 789, citing Nelson v. Cornwell, 11 Gratt. 724; Drake on Attachments, § 499; Daniel on Attachments, §§ 63, 226.
    
    
      
      Equity Practice—Depositions—Failure to Refer to in Decree—Effect.—In Bloss v. Hull, 27 W. Va. 505, it is said : “Depositions of the plaintiff and others taken on his behalf are copied into the transcript oi the record, with a memorandum of the clerk that they had been filed in the cause March 23, 1881, but said depositions are not referred to or recognized in any order or decree of the court, nor is there anything in any order or decree to show that they were made a part of the record, or that they were read on the hearing of the cause ; therefore according to the repeated decisions of this court, said depositions are no part of the record and cannot be considered by the appellate court. Camden v. Haymond, 9 W. Va . 680 ; Hill v. Proctor, 10 Id. 59 ; Hilleary y. Thompson, 11 Id. 113 ; Park v. Petroleum Co., 25 Id. 108 ; Handy v. Scott, 26 Id. 710 ; Nelson v. Cornwell, 11 Gratt. 724 ; 4 Min. Inst. (2d Ed.) 1198.
      “The rule is qualified to some extent in Day v. Hale, 22 Gratt. 146, and Turnbull v. Clifton Coal Co., 19 W. Va. 299. According to these cases, when depositions are taken and filed in the cause, and the decree is supported by and obviously based upon them, the omission to refer to them in the orders or decrees of the court will be considered a clerical mistake; and the cause will be treated as having been heard upon them as well as upon the other papers in the cause. Warren v. Syme, 7 W. Va. 474.”
      See also, Turnbull v. Clifton Coal Co., 19 W. Va. 306, 307, where the principal case is cited, and the rule modified as said in the paragraph above.
    
    
      
      Executors and Administrators—Submission of Matter to Arbitration — Devastavit.—in Wamsley v. Wamsley, 26 W. Va. 46, it is said : “The court of appeals of Virginia in Wheatley v. Martin, 6 Leigh 62, decided that it is competent for an executor or administrator to submit to arbitration any controversy concerning the estate, whether the estate claims to be a debtor or a creditor; that this results necessarily from the full dominion which the law gives him over the assets and the full discretion which it vests in him for the settlement and liquidation of all claims due to and from the estate. And so far as relates to debtors and creditors, parties to the award, it is binding upon the legatees and distributees in the same manner, as if the adjustment had been made by the executor or administrator without an award, in virtue of the general powers belonging to his fiduciary character. This is simply the announcement of the common-law rule, that a fiduciary as such might submit to arbitration matters affecting the estaté or trust represented by him; and that an award made in pursuance of such submission would he binding upon the parties to the same extent that it would be if made between parties acting in their individual rights. 3 Leonard 53 ; 1 Lomax on Ex’rs (1st Ed.) 356.
      “The same rule is announced in Nelson v. Cornwell, 11 Gratt. 724, decided in 1854, but upon a controversy, which arose prior to the enactment of section five, chapter one hundred and fifty-three of the Code of 1849, and therefore said statute had no effect upon said decision.
      “In both of these Virginia cases the court held, that notwithstanding the administrator had the right to submit to arbitration any claim for or against his intestate’s estate, and an award made thereon was binding, still, if injustice was thereby done to, or loss sustained by such estate, the administrator may be chargeable therefor as for a devastavit.
      
      “To relieve the apparent harshness of this rule in its operation upon the responsibility of the fiduciary, the statute-law was amended by the Code of 1849, by declaring that: ‘No such fiduciary shall be responsible for any loss sustained by an award adverse to the interest of his ward, insane person or beneficiary under any such trust, unless it was caused by his fault or neglect. ’ Code of Va., sec. 5, chap. 153.
      “This statute was seemingly too liberal, in the opinion of the legislature, in relieving the fiduciary from responsibility, and it therefore amended it by adopting the statute of 1882 (sec. 5, ch. 63, Acts 1882), before mentioned, which requires the fiduciary to act not only without fault or neglect in order to excuse himself from responsibility for an adverse award, but it requires him, in good faith, to file a petition, stating the facts to the circuit court and then obtaining the permission of that court to submit any fiduciary claim to arbitration, before he can claim exemption from liability for an adverse award even though it was not ‘caused by his fault or neglect.’ ” See also, Tennant v. Divine, 24 W. Va. 391; Brewer v. Hutton. 45 W. Va. 116, 30 S. E. Rep. 85, both cases citing and approving the principal case, See monographic note on “Executors and Administrators”; also, monographic note on “Arbitration and Award.”
    
   MONCURE, J.,

delivered the opinion of the court.

The questions which arise in this case are: Hirst. ^Whether a court of chancery has jurisdiction of it? Secondly. Whether the slaves in controversy belong-ed to the estate of Jesse Cornwell instead of to Constance Cornwell, at the time of her death? Thirdly. Whether the claim of the appellee John Cornwell to the said slaves is concluded by the award of 1829, and the award, decree and other proceedings in the suit of Kitty Cornwell against Thomas Nelson, administrator of Jesse and executor of Constance Cornwell and others? And fourthly. Whether it is concluded by the act of limitations, or by acquiescence or laches on the part of the appellee? Another question was raised in the court below, viz: Whether the appellee, being a free mulatto, was capable of acquiring permanent ownership of the slaves. But no notice having been taken of that question in the petition for the appeal, or the argument in this court, it may be considered as having been abandoned: and was properly so; the act of 15th March 1832, Sup. Rev. Code, p. 246, having been passed since the death of the testator; and the law of the state prior to the passage of that act, not having prohibited the acquisition or ownership of slaves by free persons of color.

Proceeding to consider the other questions in the order above stated, let us en-quire :

First. Whether a court' of chancery has jurisdiction of the case?

Formerly, in England, suits for legacies were generally brought in the ecclesiastical courts. But they are now rarely brought in those courts, on account of their not possessing adequate jurisdiction to afford complete relief in most cases. 2 Roper on Legacies 1792. From the time of Lord Chancellor Nottingham, if not from an earlier period, courts of equity have exercised concurrent jurisdiction of such suits with the ecclesiastical courts.' They now exercise jurisdiction in many cases in exclusion of those courts: *as for instance, where the legacy is to a married woman, or an infant, or involves a trust, or where a discovery of assets is required. In this state, suits for legacies are brought in courts of equity only; except in the few cases in which a court of common law has jurisdiction. No suit will lie at common law to recover a legacy, unless the executor has assented thereto. If no such assent has been given, the remedy is exclusively in the courts of equity. 1 Story’s Equ. Jur. I 591. Since the decision of Deeks v. Strutt, 5 T. R. 690, it has been considered as the settled doctrine in England, that no action at law will lie to recover a general legacy; even though there be assets, and the executor expressly promised to pay it. 2 Roper on Legacies 1798; 1 Story’s Equ, Jur. $ 591, 592. This doctrine, however, has not been recognized in any case decided by this court; and Tucker, P., in Kayser, ex’or, v. Disher, 9 Leigh 357, seemed to be unwilling to admit it in its whole extent. It is well settled in England, that an action at law is maintainable against an executor for a specific legacy, after assent given: and that would no doubt be regarded as sound doctriné in this state; at least, where the executor waives his right to require a refunding bond. But it is laid down in 1 Story’s Equ. Jur. § 593, as very certain, that courts of equity now exercise jurisdiction in cases of legacies, whether the executor has assented thereto or not. “The grounds of this jurisdiction (he says) are various. In the first place, the executor is treated as a trustee for the benefit of the legatees; and therefore, as a matter of trust, legacies are within the cognizance of courts of equity, whether the executor has assented thereto or not. This seems a universal ground for the jurisdiction. In the next place, the jurisdiction is maintainable in all cases where an account or discovery or distribution of the assets is sought, upon general principles.” And “in the next place, there is in *many cases, the want of any adequate or complete remedy in any other court.” I have seen no case in which it was decided that a court of equity has not jurisdiction in a suit for a legacy, brought by the legatee against the executor. The assent of the executor to the legacy may give a right of action at law, but will not take away the right of suit in equity. Until the legacy is paid or delivered by the executor to the legatee, the former’s trust is executory, and may be enforced in a court of equity. The executor may retract his assent, if given upon a reasonable ground for considering the assets as sufficient for all demands, but which prove deficient in consequence of unknown debts unexpectedly claimed. 2 Lomax on Ex’ors 132. The legatee cannot be expected to know the state of the assets, and the executor cannot complain that the suit against him is brought in.a court in which an account can be taken of the assets; and if found deficient, the legacy may be applied to make up the deficiency. These observations apply with increased force in this state, in which an executor, before he can be compelled to payor deliver a legacy, has a right to require a refunding bond for his indemnity; unless the legatee pursue the course prescribed by the Code, p. 554, § 32.

An executor may certainly agree to dispense with a refunding bond, and to pay or deliver the legacy to the legatee, or hold it for his benefit; and in the latter case, the legacy would in effect be paid or delivered to the legatee: the executor holding the subject as his agent, and the possession of the agent being that of the principal. In such a case the remedy of the principal against his agent would probably be at law, and not in equity. But to create such a case the evidence of intention to waive the right to require a refunding bond should be very clear. An executor may be willing to assent to a legacy, and even to hold *it for the benefit of the legatee, and still not willing to part with the possession of it without a refunding bond. Assent is generally given, and may be enforced by a court of equity, when all debts known to be in existence are paid. But there may be other debts; and against them, the refunding bond is intended to guard. An intention to waive the right to require such bond will not be inferred from a mere assent to the legacy. The assent, in the absence of clear evidence to the contrary, will be presumed to be on condition that the bond be given.

Applying these principles to this case, it is unnecessary to enquire whether the executor Nelson ever assented to the legacy of the slaves in controversy; as there can be no doubt that he never parted with the possession of them as executor, nor waived his right to require a refunding bond. Upon this ground, therefore, I am of opinion that a court of chancery has jurisdiction of the case. Whether it has jurisdiction upon any of the other grounds relied on in the bill, is a question which need not be considered.

Secondly. Did the said slaves belong to the estate of Jesse Cornwell, instead of to Constance Cornwell, at the time of her death?

The appellant contends that she sold Juba, who belonged to the estate of her husband Jesse Cornwell, and bought Prudence or Prucy with the proceeds ; intending to substitute the latter in place of the former: and that whether she so intended or not, the legatees in remainder of Jesse Cornwell had a right to claim Prudence and her issue as having been acquired by means of a trust fund to which they were entitled: or at all events, that these slaves were liable for the debt due by the testatrix for the proceeds of the sale of Juba.

If the case be considered without reference to the record of the suit before mentioned, and the depositions ^copied therein, there can be no doubt as to the title of the testatrix to the slaves at the time of her death, nor as to the right of the appellee to claim them as legatee under her will, free from any claim of the legatees in remainder of her husband. The evidence shows that she bought Prudence when a little girl, shortly after her husband’s death in 1805, about four years before the sale of Juba, at the price of two hundred dollars, which she paid out of her own money: that she always claimed, and was reputed, to be the absolute owner of Prudence and her children until her death in 1825, when she bequeathed them to her grandson, the appellee: that they were inventoried and appraised as part of her «state shortly after her death: and that they were always held and claimed by her executor Nelson as part of her estate until his own death in 1845. Besides the record and depositions aforesaid, there is nothing in the case to oppose this strong evidence of title, except some evidence introduced by the appellant to impeach the credit of some of the witnesses of the appellee. Conceding the impeachment to be successful, as far as it goes, the testimony remaining unimpeached is amplj' sufficient to sustain the title of the testatrix and the claim of the appellee.

In regard to the additional evidence afforded by the record and depositions in the suit aforesaid: I think it is at least questionable whether the appellee ought not to have been a party to that suit; and not having been so, whether the record and proceedings therein are admissible evidence against him. I also incline to think that even if the record be admissible, the depositions copied therein are not properly a part thereof. They all appear to have been taken by the commissioner and returned with his report which was recommitted; and before another report was made, there was an order of reference in the suit, an award, and *a final decree thereon. The decree recites that the cause came on to be heard on the bills, answers, exhibits and award; saying nothing of the commissioner’s report and depositions; which seem therefore to be no part of the record, according to the case of Shumate v. Dunbar, 6 Munf. 430. But without expressing any definitive opinion upon these questions, and considering the said record and depositions as admissible evidence, I am still of opinion that it does not alter the case, and that upon all the evidence therein the testatrix was clearly entitled to the slaves at the time of her death.

It is contended, however, that if she was entitled to the slaves they were at least liable for the proceeds of the sale of Juba, as a debt due by her at the time of her death. If any such debt ever existed, it has, I think, been fully satisfied. Though entitled to a life estate in all the property of her husband, and though she survived him twenty years, she appears long before her death to have made large advances of slaves and other property to most of her children. As early as 1810, fifteen years before her death, she had made advances to one of them, Bydia Hoff, in full of her interest in the estate. She was one of the four distributees of her deceased son Gustavus, who, besides his own share of the estate, claimed to have purchased the share of his sister Nancy Brockley; on account of which two shares, nothing had been advanced. She left some other estate, besides the slaves in controversy and her interest as distributee aforesaid, which came to the hands of her executor Nelson, and on account of which a balance of two hundred and thirty-eight dollars and seventy-three cents was found to be due by him on the settlement of his administration in 1836. The legatees in remainder have received the benefit of that balance, and of her interest as distributee of her deceased son; which, saying nothing of the ^benefits received in the way of advancements, must have much more than satisfied and compensated any claim they could have against her on account of the price of Juba. But in fact no suit was ever brought to recover any such claim; and if one were now brought, the act of limitations or lapse of time would be a sufficient defense against it.

Thirdly. Is the claim of the appellee concluded by the award of 1829, and the award, decree and other proceedings in the .suit aforesaid?

I do not understand it to be now contended that the award of 1829 is conclusive; or that it can have any effect upon the case. Neither the appellee, nor Nelson the administrator of Jesse and executor of Constance Cornwell, was a party to the submission. The award was void, even for matter appearing upon its face; was not acted upon or executed by any o C the parties ; was expressly repudiated by some of them; and was claimed to be enforced by none of them, except Kitty Cornwell, who attempted to set it up in her suit brought in 1835. It may therefore be dismissed from further consideration.

Then, as to the effect of the award, decree and other proceedings in the suit aforesaid: In the argument of this case, the question was raised and discussed, Whether the slaves in Controversy were disposed of, or intended to be disposed of by that award and decree? The counsel for the appellant maintained the affirmative, and the counsel for the appellee the negative, of this question. The award itself has been lost: and the decree is merely for certain sums of money in pursuance of the award. The contents of the award can only be conjectured, or inferred from the pleadings and proofs in the suit. The slaves are not expressly named in the bill; the main object of which was to recover the slaves Betsy and her children claimed to have been advanced to the complainant *by her mother, and adjudged to be hers in the award of 1829; but which had been sold by her sister Mrs. Petty for one thousand five hundred dollars. Another object of the bill was to enjoin a judgment which had been recovered against her on one of her bonds for the hire of the slave Prank belonging to her father’s estate; which slave she secretly sold about the time she filed her bill, and was of the value of eight or ten hundred dollars. But for these objects the suit would probably not have been brought. For the purpose of attaining them, and especially the one first named, she attempted to set up the award of 1829, and to have the estates of Jesse and Constance Cornwell disposed of according thereto. Notwithstanding the invalidity of that award, it was competent for the court, under the prayer for general relief (if all proper parties were before it), to decree an account and distribution of the estates of Jesse and Constance Cornwell; and, for that purpose, to determine to which of the said estates the slaves in controversy belonged. Whether the court did in fact so determine, is the question. The appellee John Cornwell was of all persons the most interested in such a determination; and was certainty a proper, if not a necessary party to the suit, if it involved his title to the slaves in controversy. The fact that he was no party to the submission, is relied on by the executor Nelson as one of the grounds of the invaliditj' of the award of 1829. Comnjissioner Macrae, in his report in the suit, says, ‘ ‘Prucy and her increase cannot, it is conceived, be brought into controversy, and adjudicated in this cause, whilst John Cornwell to whom they were bequeathed by the will of C. Cornwell deceased is not a party to this suit; whose claim cannot be affected by the litigation of the parties, of whom he is not one; and the plaintiff Kitty Cornwell makes no claim to Prucy and children in her bill, or otherwise, ^except that she has taken some evidence leaning that way.” That after this, the appellee was not made a party to the suit, is an important fact to be considered in deciding the question whether the slaves were disposed of by the; award and decree; especially since, if they were so disposed of, they were thereby made the property of the executor Nelson himself. The executor is a sufficient representative of the legatees, only when his. interest is not adverse to theirs. The small amount of the decree is also relied on by the counsel of the appellee as strongly tending to show that the slaves in controversy could not have been charged to the appellant in the award. There are but two sums decreed in the suit: One, to wit, four hundred and seventy-four dollars and sixty-four cents, with interest on three hundred and fifty-eight dollars and twenty-two cents from the first October 1843, in favor of Kitty Cornwell against Nelson; and the other, to wit, three hundred dollars, with interest from the same day, in favor of Nelson against Caty Cornwell or Petty.

The lowest estimate which was put upon the value of these slaves in 1838, when the commissioner’s report was made, was one thousand seven hundred and twenty dollars. They seem to have increased rapidly in value after that time until 1850, when they were valued at about five thousand dollars. What was their value in 1843 when the award was made, or in 1844, when the decree was made, does not appear, though it probabty much exceeded the value in 1838. Setting down the value only at one thousand seven hundred and twenty dollars, and deducting from it six hundred dollars, which is the highest estimate made of the expense of keeping the slaves over and above their hires while they were in the hands of Nelson prior to 1838, a balance would remain of one thousand one hundred dollars, which is the lowest sum with *which it is contended he was charged for the slaves. It is difficult to understand how he could have been charged even with this small sum, consistently with the small amount of the decree against him. It is not pretended that he paid anything on account of these slaves to Lydia Hoff or Nancy Brockley, as to whom the bill was dismissed. He says in his answer that in 1830 and 1833 he settled with these parties for their shares of both estates, and held their acquittances; and the fact is confirmed by the commissioner’s report and the failure of these parties to assert any claim. In the same answer, filed in 1837, he affirms the continuing title of the appellee to the slaves in controversy, which is inconsistent with the idea that he had previously accounted with Lydia Hoff or Nancy Brocklej', or any of the other legatees in remainder, for any part of the value of the slaves in controversy. Therefore, he could have accounted only with Kitty Cornwell, and perhaps Caty Petty, if with any of the said legatees, and with them only by means of the award and decree aforesaid. And yet the amount decreed against him is little if any more than he seems from the materials in the record to have owed, independently of any charge on account of the slaves. On the other hand, one of the arbitrators, Mr. Tebbs, whose deposition was taken five years after the award was made, testifies that the purpose of the award was to settle the claims in dispute between the heirs of Jesse and Constance Cornwell and Nelson the administrator. “The arbitrators took into their estimate and settlement all the negroes of said decedents’ estates. About these there was much difficulty. Some had been sold: Perhaps all of them. Some were claimed by one party, and the same by another. There had been one or two valuations of the negroes. I recollect negro Pru and her children had been valued, and there was much evidence taken as to the *value of them. So it was, the arbitrators took the whole of the negroes into their calculations and estimates with the other property of the estate, and made their award accordingly; aiming at a final settlement of affairs between the personal representative and the distributees of said decedent.” He does not say what disposition the award made of Prucy and her children ; whether it left them in the hands of Nelson, as executor of Constance Corn-well, or agent of the appellee; or whether it converted them into the individual property of Nelson, and charged him in some way and to some extent with their value. Either of such dispositions would be consistent with his testimony; though the latter would have been very irregular if not illegal, and difficult to be reconcthed with the amount of the decree. The deposition of the other arbitrator, E. D. Richardson, was not taken, and the inference is that he could give no information on the subject. The only other testimony in the case which can tend to show that the claim of the appellee was intended to be concluded or affected by the award, is the deposition of his mother Kitty Cornwell, who says, the arbitrators in their award, at her instance, introduced Prucy and her children, as she believes.

This evidence of the contents of the last award is altogether too vague to conclude and defeat the claim of the appellee; and I think the Circuit court was right in the opinion that “the slaves were left unaffected and undisturbed by the said decree, in the hands of Thomas Nelson the executor, who held the same until his death.”

I also think the Circuit court was right in the opinion that, even if the award and decree were as contended for by the appellant, “they were produced as the consequence of an improvident submission to arbitration of the interests which the said Nelson was holding as executor of Constance Cornwell *and agent of the legatee; he the said Nelson holding as executor a title in the slaves, shown to have been incontrovertible, and free from all question, in law or in equity; and which ought not, therefore, to have been submitted to arbitrators, to be decided upon according- to their vague and undefined and uncontrollable notions of law and equity:” that such submission was a devastavit in the executor, for which he was answerable to the legatee, if thereby the slaves were lost to the latter. And “that as the result of the said award and consequent decree has been to leave the slaves in question in the undisturbed possession of the said Nelson, who it is contended became the entire owner absolutely of the same, the legatee is not deprived of his recourse upon them, notwithstanding the award made under such improvident and wrongful submission.”

It is stated in the petition for the appeal, that this case is believed to be the first instance in which an executor, acting bona fide, has been held responsible for an award under a submission made by him. And it was argued by the counsel for the appellant, that so unreasonable a doctrine ought not to be sustained.

It would be difficult to maintain that the executor acted bona fide in this case in making the submission, if the award was in pursuance thereof, and the effect of it would be to conclude the claim of the appellee to the slaves, and invest the executor individually with the absolute ownership thereof. The circumstances under which the submission was made have been alreadj' sufficiently stated.

But is it true that an executor or administrator will be responsible for a devastavit in no case in which he acts bona fide in making the submission? In a case decided in 15 Elizabeth, and reported in 3 Leonard 53, it was held that an executor may as such submit to arbitration. But if the arbitrators do not award as *much as he would be entitled to at law, it will be a devastavit for the residue; for the submission was his own act. The principle declared in that early case has been recognized in many subsequent cases, and denied in none that I have ever seen. It is stated as the settled doctrine in all the digests and abridgments of the law, and in all the elementary works on the subject. Comy. Dig. Administration, I 1, Assets, C; Viner’s Abr. Executors, G a 3; 1 Bacon’s Abr. 314, Arbitrament and Award, C; 1 Dana’s Abr. C, 13, Art. 2; Russell on Arbitration, p. 36, 63 Law Library 84; 1 Lomax on Ex’ors 356. The doctrine was expressly admitted by two of the judges of this court in Wheatley v. Martin’s adm’r, 6 Leigh 62. And in the opinion of Judge Cabell in that case, is contained a clear summary of the law in regard to the powers and responsibilities of executors and administrators in this respect. Whthe the power of an executor or administrator to refer to arbitration, results from his power to settle all claims due to or from the estate he represents ; and while the award is binding on him in his fiduciary character, and so far as relates to debtors and creditors, parties to the award, is binding on legatees and distributees in the same manner as if the settlement had been made by him without an award; yet if injury has been done to legatees and distributees by the award, it may be redressed by charging it as a devastavit by him, on the settlement of his accounts. Id. p. 71. The burden of proving such injury would of course devolve on the party complaining of it, and every fair presumption would be made in favor of the award. This doctrine has been altered by the Code, p. 611, 5; which, however, does not apply to this case.

The reason assigned for the doctrine in the case in Leonard, was that the submission was the executor’s own act. Whthe he has the power to submit, as a *means of settlement, he is not bound to do so; and the award, therefore, before the law was altered by the Code, gave him no more protection against the consequence of paying an unjust claim than his voluntary settlement would have done. An award in pursuance of a submission, if there be no error apparent on its face, and in the absence of fraud or mistake, is conclusive. However incompetent the arbitrators may be, and however grossly they may err in their judgment of the law or fact, there can be no appeal from their decision. It may have been considered unsafe and dangerous to permit an executor or administrator to refer to the final arbitrament of such judges a controversy affecting the estate of his decedent, without holding him liable for a devastavit if any injury resulted to the estate from the award. But whether the doctrine was reasonable or not, and what were the reasons on which it was founded, are immaterial enquiries, if I am right in saying that it was well settled.

The result of its application to this case is that the appellee is entitled to recover the slaves in controversy, notwithstanding the award, if he has shown that he would have been so entitled if no such award had been made; and that he has so shown, I think sufficiently appears from what has, already been said. The award and decree thereon may, therefore, be put out of the case, and the only remaining question is:

fourthly. Whether the claim of the appellee is concluded by the act of limitations; or by acquiescence or laches on his part.

The claim is certainly not barred by the act of limitations. The executor never held the slaves adversely to the appellee, at least before the decree of 1844, and this suit was brought in 1847. Nor is it concluded by acquiescence or laches on his part. He left the state in 1828, two years before he arrived at age, and was not heard of for many years thereafter. It does not appear *where he was until 1839, since which time he has resided in Georgetown, D. C. It does not appear that he was ever informed by the executor Nelson, or any other person, or had any knowledge of the pendency of Kitty Cornwell’s suit, or of any of the proceedings therein. She says that at the time the suit wás brought, she believed that .he was dead, or had gone where she would never see or hear from him again. Her interest in regard to the slaves was adverse to his. She was interested in setting up and enforcing the award of 1829, which declared Betsy and her increase to be hers, and the slaves in controversy to be a part of her father’s estate, of which she was one of the distributees. It is true that before he left the state the executor seems to have accounted with him for the horse bequeathed to him by the testatrix; and he was doubtless aware of the legacy of the slaves. But by the terms of the wil-1 the slaves were not to be delivered to him by the executor until he was of age; and if he attempted to sell them, they were to be free. Whether the latter condition was valid or not, he probably believed it 'to be so, and the effect was the same. They were chargeable slaves, incapable, it seems, of producing any hire; and they were in the care of one whose relation to them gave assurance that they would not be neglected. It may have been inconvenient or illegal to remove them to his place of residence. Under these circumstances, it was natural and reasonable that he should permit them to remain in the possession of the executor. His having done so from the time of his arrival at age in 1830, until the institution of his suit in 1847, a period of seventeen years, is not of itself sufficient evidence of acquiescence, or sufficient laches, to conclude his claim, and entitle the executor to the slaves in his own right. The evidence against him afforded by the lapse of time, is repelled, and not strengthened, by the surrounding circumstances. *There is no evidence that the executor ever held, or claimed to hold, the slaves adversely, unless it can be found in the award and decree of 1843 and 1844, the effect of which has been fully considered. On the contrary, he continued to affirm that he held them as executor of Constance Corn-well, or as agent of the appellee, down to a recent period before his death.

I think there is no error in the decree, and that it ought to be affirmed.

DANIEL, J., dissented on the last ground stated in the opinion of the court. He thought the appellee was barred by his laches.

Decree affirmed.  