
    
      Wm. Poag, adm’r., vs. John and Joseph Carroll.
    He that comes into possession of goods, by the permission or authority of the law, and parts with them honestly, to one haying the right to .demand them, cannot be made liable for a conversion of them.
    Though a probate has been repealed, an executor is protected by it in all his acts, done in the due course of administration, and in the faithful discharge of his trust.
    An administrator being the agent of the law, is not only protected in his official acts, but they are legally valid. An executor derives his title from the will, and is owner under it, and not under the judgment and probate; these only clothe him with authority to exercise the office.
    TRIED BEFORE EARLE, J., AT YORK, FALL TERM, 1837.
    Trover for negroes — Andrew, Sarah, Paulina, and ber tbsee children.
    Thomas Carroll executed a paper as Ms last will and testament, on the 4th March, 1824, having but one or two witnesses only, and died in 1829.' Tbe defendants, as bis executors, proved tbe will, 8tb December, 1829, and having qualified, proceeded to dispose of tbe estate as tbe will directed, delivering over to tbe several legatees tbe property bequeathed to them. All their proceedings were offered in evidence on tbe trial. They bad delivered Andrew to Samuel Carroll, and Sarah to tbe guardian of Moses Carroll, to whom they were respectively bequeathed, and they were removed from tbe State. In October, 1830, tbe will was proved in solemn form, and there was no appeal. In March, 1836, it was a second time proved in tbe same manner, and an appeal'was set aside. Tbe plaintiffs administered, 6th September, 1836, and proved a demand and refusal on the 14th of September of the same year.
    Paulina and her children were claimed by John Carroll as a gift, independently of tbe supposed will. He suffered them to be appraised with reluctance, believing them to be his own: they were proved to have been in his possession previous-to tbe death of his father. They were sent for to bis bouse, to be appraised at Joseph Carroll’s, where Thomas Carroll died, and where Ms other property was. The defendants produced a bill of sale, or deed of gift of Thompson, tbe eldest child of Paulina, dated 31st of March, 1826, from Thomas Carroll to John, who then bad Paulina in his possession. Upon her being called in, with the child in her arms, Thomas Carroll said, “ Here is the child; I intend, or allow this girl for my son John, and I give this bill of sale to prevent them being separated.” Paulina had been already bequeathed to John by the will of 1824, but the child was born afterwards. Thomas Carroll was living at his own house; in the winter of 1825 or 1826, he removed to Joseph Carroll’s. Paulina was hired out in 1825, and went to John Carroll’s the next year, where she remained until the death of Thomas Carroll, in October, 1829. The bill of sale was drawn at the instance of John Carroll, who stated to the witness who drew it, that his father had bequeathed to him Paulina, and as Thompson was born after the execution of the yvill, he wished the deed to secure the child with its mother.
    A motion was made for a nonsuit, on the main ground presented in the three first grounds of appeal, but was overruled. The same grounds of defence, together with the statute of limitations, were relied on before the jury.
    His Honor was of opinion that if the action could be maintained at all, (which he did not think to be very clear), that the statute of limitations could not avail the defendants. In his charge to the jury, he overruled all the grounds of defence assumed, and submitted to them the question, whether John Carroll had acquired a title to Paulina, independently of the supposed will.
    The jury found for the plaintiff the value of Andrew and Sarah, establishing the title of John Carroll to Paulina and her children.
    The defendants appealed on the following grounds:
    1st. Because his Honor erred in holding that the present-action could be maintained against the defendants, who were sued for their acts as executors under the will of Thomas Carroll, deceased, which had been admitted to probate by the Ordinary.
    2d. Because the judgment, of1 the Court of Ordinary in favor of the will, and an acquiescence in it for more than four years, was binding and conclusive upon the rights of all persons interested therein, and it should have been so decided by the presiding Judge.
    3d. Because his Honor erred in deciding that the executors derived no protection from their letters testamentary, for their acts done in a due course of administration ; as the will under which they derived their authority to act was informal and void, notwithstanding the decree of the Ordinary establishing it.
    4th. Because the Court held that the statute of limitations would not avail the defendants.
    5th. Because as the defendants were made liable only for Andrew and Sarah, and as they were not in possession of them at the time of the demand, the Court erred in charging that the demand was evidence of a conversion, or that the-defendants could be made liable for their value.
    6th. Because there was no evidence of a joint cdnversiom.
    Witherspoon, Williams, and Dawkins, for defendants.
    
      Hill and Mills, contra.
   Curia, per Butler, J.

Whether the plaintiff, representing the estate of Thomas Carroll, has been legally deprived of his right and title to the negroes by the acts of the defendants under a void will, is a very different question from the one involved in this case; which is, should the defendants be held personally liable for a conversion of property of which they had the rightful custody under a judgment of a Court of competent jurisdiction, and which they delivered to those who had a legal right to demand and receive it at law.

The defendants do not now contend that they ever had any legal title to these negroes, either from the will or the probate: for the will being void, it vested no legal title in them — but the position ' which they take is this, that they did not - act as executors by voluntary intrusion into the office, but by virtue of a judgment of a Court competent to pronounce on the authentication and probate of the will; and that they are entitled to the indemnifying protection of that judgment, against liability for all 'acts done bona fide in the due course of administration,'and in the faithful discharge of their trust. They derived their commission from the probate and judgment, and had thereby the rightful custody of the goods and effects of Thomas Carroll, the supposed testator. It is true, this commission could not be used as a pretext to enable them to do any thing in willful derogation of the true owner’s rights after defendants had notice of them; for such would be a violation of trust and a conversion against the title of the true owner. The case resolves itself into this simple proposition: Were the defendants guilty of a conversion which is the gist of this action. In the case reported in 5 Barn. & Ald., 7 E. C. L. R. 249, it was well decided -that the defendant in that case had been guilty of a conversion. He had been acting under the probate of a false and invalid will; and áfter he had notice that he had no title to the property as trustee, he sold it, in willful derogation of the right and title of an executrix appointed by a true and valid will. There was no one, at the time, that could have compelled him to enforce the provisions of the void will. He had the protection of the law in holding the estate for the benefit of the legal and rightful executrix. She alone had the right to demand and receive the estate. In selling the property, therefore, he was clearly guilty of a conversion.; as much, so as an innocent finder of an article would be, should he deliver the thing to the wrong one after he had ascertained the true owner. But suppose the case of a finder who had been lawfully dispossessed of the articles which he had found; it is clear in such a case he would not be liable. This principle is recognized in the case of Burnley vs. Lambert, 1 Wash. 398, as unquestionable law.

The position may be laid down generally, that he that comes into possession of goods by the permission or authority of the law, and parts with them honestly to. one having a right at the time to demand them, should not be held liable. In such cases, where the article has been sold, the party selling would be liable for money had and received, as long it is in his hands ; or for a conversion, if he should refuse to deliver it up to the true owner.

In the case under consideration, the defendants did have a right to take the negroes into their custody, and dispose •of them, while the probate was bona fide in force. A probate, as long as it remains unrepealed, cannot be impeached in the Temporal Courts, and gives the executors full power to receive and dispose of the effects according to the provisions of the will. Allen vs. Douglass, 1 T. R. 123. An executor would have a right j;o sue for and receive debts due to his supposed testator, and a debtor would be indemnified for making the payment, with the restriction and limitation that these things must be done in the bona fide administration of his trust. There is no danger in giving this protection to' an executor under an authenticated but invalid will. The legatees under such a will could compel him to deliver over to them their legacies, with as much right as the executor could compel debtors or bailees to pay debts, or deliver up chattels. -The executor occupies the same legal position to both, and after it should be ascertained that he was not the rightful executor, he has neither the right to receive debts or to deliver over legacies. He has the legal commission to represent the estate for' a time, and during that time he is entitled to personal indemnity. If the legatees had recovered judgment against the present defendants, and the legacies had been paid under that judgment, it would be conceded that the defendants would have been protected. This circumstance only makes the case more palpable, but not stronger — for the 'defendants were not bound to stand suit when the certainty of the result was known. There is a wide difference between an administrator and an executor: the first is entirely an agent of the law, and all acts done by him, in the due course of administration, not only entitle him to personal protection, but they are legally 'valid. An executor derives his legal title to the property from the will, and is owner.under the will, and not under the judgment and probate. These, however, clothe him with his authority ,to exercise his office, and he has a right to hold them up as a shield of personal protection. And it seems to me that it would be a reproach to the law, if it would not vindicate its own judgments when a party acting Iona fide hinder them claims their protection. To make executors personally liable for all the property which they have parted with, under a will pronounced valid at thé time, would lead to frightful consequences; and if such should be the case, they might as well act without probate as with it. It would destroy all confidence in the judgments of Courts.

This case is very little different from that of a sheriff’ selling property under a void judgment, to one who was a party to the fraud. In such case, the title to the thing sold could not be affected so far as" regards third persons having an interest in it. The title would not pass, but the sheriff would not be held personally liable, being an innocent agent of the law, and no party to the fraud. The plaintiff has a right to receive the property from those who have it in possession, and from those who have parted with it in derogation ’ of his rights; but he has no right to make the defendants liable for a conversion.

The Circuit decision is reversed, and a nonsuit ordered.  