
    William Evans and Wife, and others, vs. J. J. Harllee, Administrator of A. L. Scarborough.
    Testator loaned to his wife for life, one-seventh of his negroes, at her death to he equally divided among his “ surviving heirs,” and to each of his six children he loaned one other seventh part for life, at his, the child’s death, to go to his lawful issue, and in default of such issue, to he equally divided among testator’s “surviving heirs — On the death of one of the ohildren without issue, held, that testator’s widow was entitled to a portion of his share as purchaser, she being within the meaning of the term, “surviving heirs.”
    Testator, who died in 1827, directed his estate to be kept together until 1830, and then to be divided into seven parts, his widow to take one part for life, with remainder to his'“ surviving heirs,” and each of his six children to take one other seventh part for life with remainder in case of his or her death without issue to testator’s “surviving heirs.” C. &., one of the ohildren, died before 1830, without issue. In 1830, the estate was divided into six parts, the widow and each of the five children, then living, taking one part: — Held, after the death of the widow in 1853, in a contest between the remainder-men under the will and a purchaser from her, that she, the widow, became entitled, as “ surviving heir,” upon the death of C. G. without issue, to one sixth part of his share j and, further, that it was a question of fact for the jury to determine, whether in the division of 1830, she then surrendered her absolute interest in O. G’s share, and took the whole she received under the limitations of the will.
    At the division of 1830, a considerable amount of testator’s debts were unpaid, and there was evidence to show that the parties to the division, agreed that each ■_ might sell property in order to pay up his or her portion of the debts. The widow sold two negroes received by her in the division, and after her death this action of trover was brought by the remainder-men for the negroes sold by her : —E'eld, that it was a question for the jury, whether such agreement existed, and if so, that it bound such of the remainder-men as were parties to it.
    BEFORE GLOYER, J., AT MARION, JULY, EXTRA TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows:
    “ The plaintiffs sue in trover to recover damages for the conversion of four slaves, Phoebe and her children, Brass, Alfred and Yiolet. They claim a right of property in these slaves, as remainder-men, under the will of Thomas Godbold, dated 17 th May, 1825, and who died in the same year.
    
      44 Subject to the direction, that his estate should be kept together till 1st January, 1830, for the support of his wife and three daughters, the testator disposes of his property as follows:
    4441 loan to Sarah Grodbold, my dearly beloved wife, during her, natural life, all that part of land,’ &c.; 4 also one-seventh part of all my negroes, to be selected in the following manner: the whole of them to be appraised by three respectable and disinterested freeholders, and then for the said Sarah Grodbold, my beloved wife, to make her selection agreeable to her own choice,’ &c.
    44 After sundry gifts, in the language of loans, the testator directs, that his executors shall sell certain tracts of land, and the balance of his lands he desires shall be divided into six equal parts, and devises to .each of his children the one-sixth part.
    44 4 The negroes, stock, and all the property that I may be possessed of, at my decease, to be divided as the land.’
    44 4 Also, it is my will and desire that all the property I have loaned to my wife for her natural life, after her decease, for it to be equally divided among my surviving heirs, share and share alike; also, all the property that I have loaned to my sons and daughters before mentioned, after he, she, or they depart this life, the portion allotted he, she or they, shall go to the lawful issue of their bodies; and if either of my children shall depart this life, leaving no lawful issue of their body, then the whole of that part of my estate allotted to he, she or them, should be equally divided among my surviving heirs.’ . '
    44 The testator left his widow Sarah surviving him and six children : Hugh, Charles, John, Sarah Ann, who married the plaintiff, William Evans, Mary, who married James Haselden, and Elizabeth, who first married John Haselden, and after his death David Munro.
    44 Charles died in 1827 (before the period fixed for the division) unmarried and leaving no issue. ■ Elizabeth died in 1844, leaving'Sarah Jane, (the wife of O. D. Evans,) Hugh G. Haselden, Cyrus B. Haselden, James C. Munro, and Franklin M. Munro, the issue of her two marriages, surviving her.
    “ The period limited for a division having arrived, and there still being large debts against the,testator unsatisfied, the widow, and surviving children who were then of age, on the 26 th of January, 1830, signed the following agreement to protect D. S. Harllee, surviving executor, from liability for said debts:
    We the undersigned, as legatees in said will mentioned, do hereby acknowledge and agree, that all the property that has been received and allotted to us individually, (reference being had to a list of said property and division, hereunto annexed, will more fully appear,) has been received and taken by us, by the consent of the said David S. Harllee, by way of loan, and is, and shall at any time hereafter, until every judgment, execution, debt, or demand against the estate, or for what said Harllee is responsible, shall be fully paid and satisfied, with such costs, charges, and expenses as the said D. S. Harllee may be put to for or on account of said estate, and shall be at all times subject to his control and management, and subject to and may be sold by him or by the sheriff, for or on account of any such debt, due, or demand as aforesaid. We further promise and agree, at any time when required by said Harllee, to deliver all the said property into his hands or possession, or to account to him in cash its full value. It is further understood and agreed, that when all the debts which are or shall or may be due by, for, or on account of said estate, shall have been fully paid and satisfied, and also"all costs, charges, and expenses for or on account thereof, then the partition and division hereunto annexed shall be fully confirmed and satisfied. In case only the undersigned shall well and truly pay and satisfy every judgment, execution, debt, or demand against the said estate, or which has or may be contracted by the said Harllee for or on account of said estate, then also the said partition and division to be ratified and hereby confirmed.’
    “ On the '27th January, 1830, a partition of the negroes was made by three persons, as the testator directed, who state that ‘ after valuing the negroes, and complying with the requisitions of the will, the following negroes were allotted to the following heirs, viz.:
    Mrs. Sarah Godbold:
    Pool Tom, valued at . . $400
    Cassey, $200, Charles, $400 . 600
    Daniel, $400, Caroline, $425 . 825
    Phoebe and child, . . . 350
    2,175
    Leaving a balance due widow, 3
    $2,178’
    “ Which was the one-sixth of the value of the negro property.
    “ The Commissioners also allotted to each of the five surviving children a share, and close their report with the following certificate:
    “•‘We do certify the above to be a correct statement of the division, subject to the agreement signed by the heirs to the executor, this 27th day of January, 1830.’
    “D. S. Harllee, the, executor, authorized the widow and children to sell such property as they could spare to pay debts, and on the day of the division, and in the presence and with the approbation of D. S. Harllee, some of the children sold negroes which had been allotted to them. The widow said she must sell to pay, as she had no money, and afterwards she sold Phoebe and her child Brass to Gen. Wheeler,, who owned her husband, for three hundred and twenty-five or three hundred and fifty dollars.
    “ In 1841, Phoebe and her issue were sold by the sheriff of Marion, by virtue of executions entered in his office against Gen. Wheeler, and purchased by the defendant’s intestate, A. L. Scarborough; and the defendant claims to hold Phoebe and her issue by virtue of the sheriff’s bill of sale.
    “ It did not appear that D. S. Harllee, the executor, had paid, or was likely to be made liable for any of the debts of his testator.
    “When the partition of the negroes was made, the one-sixth was allotted to the widow without reference to the interest or share of Charles, the deceased son; and the executor stated that what was done was with the approbation of all the heirs.
    “ Sarah Godbold, the widow, died the 5th of January, 1853, and A. L. Scarborough in February, 1853, in possession of Phcebe and her children.
    “ The jury was instructed, that Sarah Godbold, the widow, received the negroes allotted to her in the partition under the limitation expressed in the will, and that her interest was only for life. That a purchaser from her could claim no greater interest, and, that on her death the remainder vested in the plaintiffs. That on the death of Charles Godbold, his share was limited over to his brothers and sisters, and, that the widow was not entitled to any portion of it. That the consent of the executor to the sale of Phoebe and her children was only necessary to the vesting of the legacy, and could not confer on the purchaser a greater interest than the widow had under the will. That, if any portion of the share of Charles Godbold was embraced in the lot of the widow, (and there was no evidence showing that Phoebe and her child constituted a part,) the whole was received by her, and regarded by the executor, children, and commissioners;.as her share under the limitations of the will, and, that she had no absolute property in any of the negroes composing her lot. That the conditional assent of the executor to the vesting of the legacy was for his protection, and, that neither he nor the creditors are parties to this suit; and, that his consent to the sale of Phoebe and her child by the widow after the partition, was evidence of his assent to the vesting of these, and enabled -her to dispose of her interest in them.
    “ The jury gave a verdict for the plaintiffs for the value of the negroes.”
    The defendant appealed, and moved for a new trial on the grounds:
    1. Because Sarah Godbold was entitled to the sixth of the estate of Charles Godbold, either under the will of Thomas Godbold, or under the Acts providing for the distribution of intestates’ estates, and his Honor r.uled erroneously to the contrary.
    2. Because, by the partition of the estate of Thomas God-bold, made in 1830, a portion of the negroes of the estate of ■Charles Godbold, to which he was entitled under the will of Thomas Godbold, was in fact set apart to Mrs. Sarah God-bold, and his Honor charged the jury erroneously to the contrary.
    8. Because his Honor did not submit to the jury the question of fact, whether any portion of the negroes received by Mrs. Godbold, under the partition in 1880, were received by her as part of the estate of Charles Godbold, and erroneously instructed the jury, that if the fact were conceded, it could not affect the rights of the plaintiffs.
    4. Because, under the agreement and partition of negroes in January, 1830, the executor of Thomas Godbold did not assent to the investing of the legacies, as the jury were instructed by the Court: but the negroes were delivered to the legatees as a loan, subject to the payment of debts then outstanding to a large amount; also subject to the control of the executor, to be sold by him, by the legatees' under his direction, or the sheriff; and his Honor should have instructed the jury that the plaintiffs, if entitled to recover at all, could only recover subject to the payment of the amount of the debts assumed by Mrs. Godbold.
    5. Because the negroes Phoebe and Brass were sold by Mrs. Godbold in 1830, a short time after the partition, and before the birth of the other negroes sued for, with the view of paying in part the portion of debts of the estate of Thomas Godbold, assumed by her pursuant to the understanding and agreement between all the heirs of Thomas Godbold and the executor before and after the partition was made; that the sale was made by the direction of the executor, and was approved by him, whereby a good and legal title vests in the purchaser under whom the defendant claims; and his Honor erroneously instructed the jury to the contrary, and also instructed them that whether the sale was made by Mrs. Godbold, or the executor, with the consent of the other heirs and legatees in 1830, the rights of the plaintiffs were not thereby affected.
    6. Because it is a reasonable conclusion, after the lapse of twenty-four years, and under the evidence in this case, that the sale of the negroes to Wheeler in 1830, was by the direction and assent of the parties then interested, was made for payment of debts, and, that an order for sale had been made by some competent legal authority; and, his Honor should have so instructed the jury.
    
      Bargan, for appellant.
    Whether the limitation over to “ surviving heirs,” after the death of a child, is good or not, the widow was entitled, upon the death of Charles, to one-sixth of his share, absolutely. But the limitation over is good, and she is entitled as surviving heir. Fvans vs. Gfo&hold, 6 Rich. Eq. 26 ; Freeman vs. Knight, 2 Iredell, 72; Seabrook vs. Sea-brook, McM. Eq. 205; Templeton vs. Walker, 3 Rich. Eq. 543; Rochelle vs. Tompkins, 1 Strob. Eq. 114; McGorklevs. Black, 7 Rich. Eq. 407. The share of Charles was divided with the rest of the negroes. There is no proof that she surrendered her absolute interest in that share. That is a question of fact, and should have been submitted to the jury. Upon the fourth and fifth grounds of appeal he cited Mees vs. Holmes, 5 Rich. Eq. ; Matheny vs. Gist, 2 Hill, Ch. 70; Moore vs. Marry, 2 Bail. 504.
    
      Inglis, contra.
    Upon the death of Charles, was the widow entitled to a portion of his share? Not, unless she comes within the meaning of the words “surviving heirs,” of the testator. The word heir is not, properly speaking, applicable to a widow. The provision made for her is in lieu of dower. She takes by election — she is an heir by election, and, if she takes dower she is not an heir. Testator could hardly have meant such an heir as that. But the context shows that he meant children. Mrailsford vs; Heyward, 2 Des. 38; Mamsey vs. Joyce, McM. Eq. 236; Bailey vs. Patterson, 3 Rich. Eq. 156 ; Holman vs. Port, 3 Strob. Eq. 66; Oswald vs. Givens, Rich. Eq. Gas. 326. There is nothing to show that the widow received the negroes sued for as part of Charles’ share. She took them under the will as part of her share. Nor is there any evidence of assent to her selling. The written paper shows the agreementof the parties, and beyond that it would be unsafe to go. He further cited 5 Stat. 109; 2 Bay, 321; 6 Stat. 238; Brown vs. Wood, 6 Rich. Eq.. 155.
   The opinion of the Court was delivered by

Withers, J.

Thomas Godbold, who died in 1825, directed by his will, that his estate should be kept together until 1830 ; that his negroes should then be appraised, by three freeholders, with a view to divide them into seven parcels, one of which parcels he lent to his wife, during her natural life — and one he lent to each of his six children for life, remainder to issue of his or her body, and in default thereof, to be equally divided among his “surviving heirs;” and the share lent to his wife was, at her decease, to be equally divided among his surviving heirs, share and share alike. Before 1830, Charles, one of the legatees and a son of the testator, died, leaving no issue, whereby his share was cast, by the will, upon the “ surviving heirs,” as remaindermen. In 1^30, (January,) the negroes were divided into six parcels, and not seven, and his widow, Sarah Godbold, received one parcel, being a sixth, among them Phoebe and child. She sold Phebe and child in April, 1830, to E. B. Wheeler, for the full value of an absolute not a life estate, and from Wheeler, by sheriff’s sale, Scarborough, the defendant’s intestate, acquired Phebe and her issue. At the time of the division, a considerable aggregate of debts, (perhaps as .much as seven thousand dollars,) resting upon the estate of Thomas Godbold, in the hands of David S. Harllee, remained unsatisfied, one at least, in favor of Gibson, being in execution. The executor would not consent to part with the' legal dominion over the negroes; nor ,with the possession, except on terms: whereupon, the legatees, the widow included, all of full age, the married females represented by their husbands, entered into a written stipulation, whereby they acknowledged that they received the property allotted to them individually by consent of the executor, as a loan from him, and that it should, at all times thereafter, be subject to his control and management, and to sale by him, or the sheriff, to meet any judgment, execution, debt, or demand against the estate, then known or afterwards to appear, and costs, charges and expenses incident thereto: and they engaged to deliver the negroesi to him at any time, when he required it, or to account to him, in cash, for the full value: the partition then agreed upon was to become confirmed only when all debts for which the estate was liable, with costs and charges, were fully paid and satisfied.

The share assigned to the widow, Sarah, and' received by her, was estimated at two thousand one hundred and seventy-eight dollars; she agreed to pay a portion, perhaps about one thousand dollars, of the execution in favor of Gibson; each of the other legatees was to pay a portion of the debts resting upon the testator’s estate. There was evidence that the widow said, at the time, she could not pay without selling property, and announced a design to sell Phoebe and child to Wheeler, who owned the woman’s husband. The executor said, sell property then. It was also in evidence, that on the very occasion, when the parties were engaged in making the division, John M. Godbold sold some negroes he received to a creditor of the estate, for full value, and one of these plaintiffs bought them from that creditor. There was evidence, that Ilaselden, who married one of the testator’s daughters, sold to Evans, who had married another, on the occasion of the partition, a little negro, assigned to his wife’s share. There was evidence calculated to show, that the executor said the parties who could not otherwise pay the portions of debt allotted to them, must sell property for that purpose; and from the presence of the executor, and all the legatees, from what was said by some, and done by others, a question of fact was presented, on the trial, whether each tenant for life, legatees under the will, was authorized by the executor with the assent, express or implied, of all the other tenants for life and contingent remaindermen, to sell the absolute estate in so much of the property allotted as might be necessary to pay the apportioned debt, left and existing as a common burthen, to do which would, by some other process, have involved a sale of property. On the 5th April, 1830, Gibson’s execution was credited with two hundred and twenty-five dollars, as paid by Sarah Godbold, the widow.

It was under these circumstances the- jury were instructed, that in all the negroes received by the widow, and vendor to Wheeler, she received only a life estate, and a purchaser from her could gain no more than her life estate against these plaintiffs, who are remaindermen since her death in 1853: that Charles Godbold’s share was limited to his brothers and sisters, and the widow took no part of it — that is, she was not a “surviving heir,” under the will; that she must be regarded as having received any interest derived from Charles’ share, as she did the ^est of the interest she took, that is, under the will, for life only; and that the assent of the executor to the vesting of her legacy or to the sale of Phoebe and child, was not an assent authorizing her to sell more than her life estate.

The Court of Errors have been called upon to inquire and determine, whether these instructions were correct.

When Charles Godbold died, in 1827, without issue, his share of negroes, one-seventh, then not set apart, fell, under the terms of the will, to such remaindermen as belonged to the class of “surviving heirs” of the testator. This Court entertains no doubt that the widow was one of them; and it is content to refer to the reasoning, and authorities cited, which tend to this conclusion, to be found in Evans and others vs. Godbold and others, 6 Rich. Eq. 26.

Then when the partition, such as it was, was made in 1830, if a share had been severed, as that which had been bequeathed to Charles Godbold, the widow, (who is the defendant’s, that is, Wheeler’s, vendor,) would have been entitled to a portion of such share, that is, one-sixth, in absolute right; and if she had sold that portion to Wheeler, he would have purchased the entire interest in so much. Such severance, however, as for Charles’ share, and such distribution of it, were not made. Nothing was said about it. The division was made as though such interest in Charles had never existed; the division was into six, not seven parts. On the Circuit, it was ruled as a judicial conclusion, that this operated to extinguish the absolute interest in remainder, of the widow, in' Charles’ share, by merging it into the life interest which was taken by her by direct bequest. This conclusion depended upon negative, not positive evidence; for nothing was said, in the written agreement or otherwise, showing such purpose. .We think this was properly examinable by the jury. It may have been a consideration leading to an authority by all to each to sell for payment of debts assigned, as defendant urges in another branch of his defence. Suppose it should be found by the jury, that the widow did not surrender her absolute interest in remainder in her portion of what was Charles’ share, that is, in one-sixth of one-seventh of the negroes, or one-forty-second part of the whole, then that absolute interest in remainder, not being severed, was diffused among the whole of the negroes assigned to her, inhered in each arid every of them, and, by virtue of that particular, absolute, but undivided interest, she was tenant in common (so to speak) with other remaindermen,! that is to say, with the plaintiffs, if they be such, and upon alienation introduced the vendee, that is, the defendant, into that relation. Pretermitting all that might be said, upon such a state of facts, upon the question of nonsuit in an action of trover by one tenant in common against another, it is enough for the present to know that the case may be capable of such a phase, in the hands of the jury, as may show a certain existing legal right and interest in the defendant, operating at least to reduce the damages — the benefit of which he has not had on the Circuit. ,

But there is another branch of this case to be considered, and it is independent of the question, whether the executor assented to the legacies or not. If the executor and the legatees agreed that the widow might sell an absolute right, and the sale to Wheeler by her was according to and in pursuance of the agreement, then the sale conveyed a valid title to Phoebe and child, and all those of the present plaintiffs who were sui juris at the time of such agreement, are bound by it, and cannot now dispute the right transferred by the sale. The children of Mrs. Haselden, afterwards Mrs. Munro, who. are co-plaintiffs, may be capable’of disaffirming the agreement of their ancestor, authorizing the sale (which will be the effect of the death of the husband of a legatee in remainder, feme covert, before the interest in remainder accrue,d to the wife;) but those of the plaintiffs who are not in that condition, are bound by the agreement, authorizing the sale in question, if, they ever made it. Assuming such agreement made, binding upon some of the plaintiffs and not upon others, the question may arise, how the whole can become joint plaintiffs in trover. No verdict can be given for those who have no right, to damages, and the joint plaintiffs cannot be severed in a verdict.

At the time of the division the parties were capable to contract, and confer an authority upon each other, the executor assenting, to sell a negro absolutely, to pay debts — all the negroes were liable to creditors — all were under the lien of Gibson’s execution, and any other that may have existed: negroes were sold, on the day of division, by a life tenant, for full value, with the knowledge, it is testified, of executor and all others in interest, and a debt of the testator deducted from the purchase money: the widow’s share little exceeded two thousand dollars, and she undertook to pay one thousand dollars of debt — the remaindermen, the plaintiffs, have received from her estate all she got in the partition with increment, except the negroes in' question, sold to Wheeler — the executor stipulated that the possession was granted as a loan, and that he retained the power to reclaim any negro and to sell the-same for the payment of debt or other proper demand against him, and could, therefore, authorize another to do what he could himself lawfully do — that was done by the widow which he could have done by the agreement, and the money was applied in exoneration of the entire estate and of the executor —from all which, it is the judgment of this Court, the defendant should have been permitted to draw an argument for the jury on the question, whether the sale to Wheeler, by the widow, was not by virtue of competent and sufficient authority in her vested, and now binding upon these plaintiffs, or some of them.

As to the requirements of the executor’s law, that to make valid sales, he shall derive authority from the will, the Ordinary or some competent Court, it is enough to say, that this course may be dispensed with by those who are competent to make a valid agreement to that effect, by proper age and intellectual capacity, and whom the provisions of that law were intended to protect. Yet the jury were instructed that, as matter of law and fact, the widow could sell' no more than her life estate. In this there was error, and,

It is ordered, that a new trial be granted.

Johnston, Dunkin, Dargan and Wardlaw, CO., and Wardlaw and Whitner, JJ., concurred.

Motion granted.  