
    Abraham Duke and Wife vs. R. M. Palmer, and others.
    
      Executors — Powers—Wills and Testaments — Husband and Wife. '
    
    Where the will gives an estate for life iu chattels, with direction, that at the death of the tenant for life, the chattels be sold and divided, the executors have no power to sell before the termination of the life estate, without leave of the Court. _
    Where the wife has an expectant interest in chattels, though a transfer, or concurrence in the transfer of her interest, by lierself and husband, will not bind her if she be the survivor when the expectancy falls in, yet if, at that time, they both be living, and he then be capable of reducing the expectancy into possession, they will both be bound by the transfer.
    BEFORE WARDLAW, CH. AT ABBEVILLE,
    JUNE, 1858.
    This case will be sufficiently understood from the Circuit decree, which is as follows :
    Wardlaw, Ch. Russell Cannon died in the summer of 1824, leaving a will, dated July 10, of same year, attested by two witnesses, whereof he appointed his wife, Jean, and his son, Elijah, executors, and whereby he bequeathed to his wife a negro, Simon, and other chattels absolutely, and also the slaves Rose, Willis, and Cate, during her life, and at, her death to be sold and equally divided among his lawful heirs; and further directed that the residue of his estate after her death should be sold and equally divided among his children. This will was admitted to probate in the office of the Ordinary of Pendleton, September 6, 1824, and Elijah Cannon at the same time qualified as executor. Upon the'death of testator, the widow, Jean, succeeded to the possession of the slave, Willis, and she retained him until the spring of 1834, when with her co-operation, Elijah Cannon sold Willis, then about twenty years old, to Sheriff Haynes, for $525, which, by the evidence, was a full price for an absolute estate in the slave. At the time of this sale plaintiffs resided about four miles from Haynes’ within the present Pickens District, and they abiding at the same place, Jean Cannon became an inmate of their family some years afterwards, and so remained until her death in 1855. Willis was instructed to some extent by Haynes in the work of a blacksmith, and after other transfers of him, was sold by Thomas Garvin to defendant, Palmer, on March 23, 1848, with warranty of the title, soundness and good character of the slave, for the price of $700. Garvin is reputed to be solvent; Haynes died about twelve years ago, leaving some estate; and about the same time Elijah Cannon removed to Texas, where he is now residing, in Grayson county, with a competent estate. Harriet Duke is a daughter of testator, and in her right plaintiffs filed this bill, March 10, 1858, against the purchaser Palmer, resident in Abbeville, and against her co-heirs or distributees, who are children and grand-children of testator, and all resident without the limits of the State. The bill prays for partition of Willis and account of his hire against defendant, Palmer, and for general relief against all the defendants. It is taken pro confesso, against all the defendants, except Palmer, but he by answer stoutly contests the claim.
    This defendant alone is vigorously pursued ; and he defends himself in the first place by the plea of purchaser for value without notice. The plaintiffs allege that he purchased atan inadequate price, and infer from this that he was aware of the defectiveness of the title he acquired; but he denies all actual notice of any right to the slave, legal or equitable, on the part of plaintiffs, and alleges and proves that he paid a full price for full title. If the estate in the slave specifically had been limited to the heirs of testator after the life interest of the widow, theirs would have been a legal title to which this plea would have been inapplicable.
    
      It appears by the bill that plaintiff, Harriet, while sole, and her son 'Hanson Duke, after Elijah Cannon left the State, obtained grant from the Ordinary of Pickens District of the administration of the estate of Russell Cannon, with the will annexed; but that plaintiffs have been advised that this grant was improvident and inefficacious to revoke the letters testamentary of Elijah Cannon. It is not clear that this advice was sound — Ex parte Galluchat, I Hill, Ch. 150; and it is at ' least probable that such grant of administration by the Ordinary would be respected by other tribunals until revoked by the Ordinary.
    In the alternative that the slave is legally limited in remainder, the defendant urges that the remedy at law is plain and adequate, and ousts this Court of jurisdiction, and this defence would deserve favorable consideration, for it is not the course of Equity to afford its remedies, (where, the law Court may intervene,) in favor of a claim so stale and suspicious as that now presented. It is urged in reply that partition, a great head of Equity, affords the only relief, as the defendant has acquired the title of Elijah Cannon, one of the common distributees of the remainder, and perhaps that of Jean Cannon, if she be an heir of testator. The scheme of the bill is that Jean Cannon and Elijah Cannon, as her agent, sold only her interest for life, and of course their interests in remainder, remain unaffected by the sale. Parties, however, are not concluded as to the right of a cause by statements in a bill and particular arguments of counsel; and it is proper to consider the result on the hypothesis that Elijah Cannon sold as executor. If he did so sell, he rightfully transferred not only his and the widow’s shares, but the interests of all the legatees. It is said that the will conferred no authority on him to sell; and that, if it did, he had discharged his whole functions of executor and terminated his office previously, by delivery of the property to the tenant for life, who thus became substituted trustee for the remaindermen. Considering the authorization by the will independently of the gift for life, the power of the executor to sell is unquestionable. Even as to lands, if a will directs sale for distribution of the proceeds among legatees, without declaring by whom the sale shall be made, executors may sell and convey; 5 Stat. 15: and as to chattels, executors as legal owners with trusts must sell them frequently, even when specifically bequeathed, for payment of debts, and may always sell them to an honest purchaser, without imposing on him obligation to inquire into the necessity of sale, or to see to the proper appropriation of the proceeds; 2 ffm’s Ex’rs. 670. Then as to the point that the executor in this case was functus officio before the sale, the affirmative conclusion would be inevitable if the slave himself had been limited in remainder to the heirs of testator. McMullen vs. Brown, 2 Hill, Ch.' 459 ; Alexander vs. Williams, 2 Hill, 522; Spear fy Ga/breath vs. Rice, Harp. 20. In that posture the estate of plaintiffs, with that of their co-tenants, would be legal, and they would be remitted to the dilemma as to the jurisdiction of the Court. It may be said further that possibly Elijah Cannon sold as executor and also for himself and as his mother, as proprietors of the life interest and portions of the remainder; but if he sold at all as executor he sold the whole estate in the slave, and the fullness of the price paid and all the circumstances of the case exclude the supposition that he sold only the life interest and portions of the remainder. He sold to a neighbor without furtiveness; and the plaintiffs were probably cognizant of the sale and consenting to it, and none of the other heirs has made complaint. If, indeed, I had concluded that the estate in remainder was legal, I might have hesitated to determine that, having ceased to be executor, he acted otherwise than he might'act lawfully as agent of his mother and in his> own right. Whether or not the widow had any share in the remainder, is a question doubtful in itself and too unimportant to justify protracted investigation.
    In my opinion, however, the estate of plaintiffs and others in the same right is merely equitable. Willis was not given to them on termination of the widow’s interest, but he was directed to be sold and the proceeds divided. Their interest was not in the chattel itself but in the money into which it should be converted. In this aspect the plea of purchaser without notice applies prima facie, but then the objection supervenes that the defendant is fixed with implied notice from the registry of the will; Ellis vs. Woods, 9 Rich. Eq. 26. ' Nevertheless, I further think that where the life estate only is legal and the remainder equitable, as'in this case, the office of the executor is not discharged but merely suspended by the delivery of the chattel to the tenant for life, and is properly resumed at the termination of the life estate. In such condition of things it would be the duty of the executor to resume possession and control of the chattel, when the particular interest was determined,.for distribution among those ultimately entitled. Here Jean Cannon’s interest was surrendered and the office of executor reinvested during her life, but this anticipation of the natural period — her death — does not impair the authority of the executor to sell and distribute. In my judgment, Elijah Cannon had prima facie right to sell, and in the absence of all collusion between the original and any subsequent purchaser and the executor to abuse the executor’s authority, that Palmer’s title must be protected, especially as it is fortified by the statute of limitations.
    It appeared in evidence that, if the plaintiffs had not in fact been paid their portion of the price of Willis, assets arising from the sale of other portions of the property given to Jean Cannon for life, remained for such satisfaction; this evidence was 'gratifying in the prospect that the plaintiffs were not likely to lose, but did not come within the pleadings so as to justify a decree in this proceeding against the absent executor, and it affords an additional-ground forrefusing remedy against Palmer.
    It is ordered and decreedithat the bill be dismissed.
    The plaintiffs appealed on the ground: '
    
      Because it is respectfully submitted his Honor erred in ruling that Elijah Cannon, the executor, had the right to sell Willis in the life-time of the tenant for life without the consent of the remaindermen.
    
      Perrin f Cothran, for Appellants..
    
      McGowan §■ Thomson, contra.
   The opinion of the Court was delivered by

Dunicin, Ch.

The Act of 1824 declares that no sale of personal property thereafter made by an executor or administrator, without an order from the Court of Ordinary, or Court of Equity, shall be valid in law or equity, except it be directed by the will.

This sale was made by the executor in the spring of 1834, and must depend for its validity on the power granted by the will. In England, it is very well settled that such power given by the will to the executor to sell real estate, must be strictly construed ; and that when a time is fixed for the sale, the executor is not permitted to anticipate the time; “ a power of sale, like all other powers, can be exercised only in the mode, and subject to the conditions, if any, prescribed by the instrument creating the power. Therefore, where the trust is to sell after the death of the tenant for life, a sale in his life time will be bad.” Hill on Trustees, 478, citing Sir James Wigram V. C. in Blacklow vs. Laws, 2 Hare. 40.

By the terms of this will, the negroes were bequeathed to testator’s wife “ during her natural life, and at her death to be sold and equally divided amongst his lawful heirs.” The power is not expressly given to the executors, to make the sale and division; but this as properly results from their appointment. But the period fixed by the testator for the sale and division was at the death of his widow. If the exigencies of the estate required a departure from the provisions of the will, it was the duty, as it was the right, of the executor to seek and obtain the sanction of the Court. In the absence of such authority, the sale in 1834 was a breach of trust on the part of the executor; and, upon the authority cited in the decree, the purchaser from him is affected with, notice of the trust.

As the widow was entitled to the possession of the negroes during her natural life, and she co-operated in the sale, the plaintiff’s right of enjoyment did not arise until the decease of the widow in 1855. This right was an equity to have the negroes then sold, and the proceeds distributed according to the provisions of the will. See Bush vs. Bush, 1 Strob. Eq. 377.

In dismissing the plaintiff’s bill, the Chancellor relied not merely upon the right of the executor either virtute officii, or under the express authority of the will, but also on the assent if not co-operation of the parties ultimately entitled, as inferred from the circumstances detailed in the decree; and he regarded this inference as strengthened by the fact that none of the heirs, except the plaintiff, Harriett Duke, had entered any complaint. The decree, however, remarked, following the statements of the bill, that Harriet D uke had become a widow, and that in her right, the claim was interposed. She was certainly a feme coverte at the time of the sale by the executor in 1834. In Terry vs. Brunson, 1 Rich. Eq. 98, it was held that though a vested right of the wife may be effectually assigned by her husband, her contingent interest will survive to her against his assignee, even though the assignment was made for a valuable consideration, and with her concurrence; and, in the recent case of Larey vs. Beazley, 9 Rich. Eq. 119, the Court ruled that, where a wife has an expectant interest, in chattels, whethersuch interest be vested or contingent, legal or equitable, no act of the husband or of any third person, in vesting the husband, a wife, or both, with the present or particular estate, will operate to vest the future or expectant interest of the wife in her husband — other intermediate cases had fully recognized the general principle. And relying upon the statements of the bill, as repeated in the decree, that these proceedings were instituted in right of Harriet Duke, who had become discoverte since the sale in 1834, the Court was of opinion that her right was not precluded by the acquiescence, assent, or co-operation of her husband in that sale. But, upon an. inquiry suggested at the hearing, and upon examination of the evidence, and, since, upon the admissions of the plaintiff’s solicitor, it now appears that the statement of the bill, that the plaintiff, Harriet Duk.e, had become a widow, was made on misapprehension; and that, in fact, the plaintiffs, Abram Duke and wife, who prefer this bill, are the same persons who were married prior to the sale in 1834; at whose house the life tenant subsequently lived and died, and who (the Chancellor infers) sanctioned the sale made by the executor, with the co-operation of the tenant for life. This statement materially varies the rights of the parties. In the well considered cases of Alatheny vs. Guess, 2 Hill Ch. 67, and Reese vs. Holmes, 5 Rich. Eq. 564, the general principle is recognized and affirmed that neither the husband alone, nor the husband and wife jointly, have the power during the coverture, to assign the wife’s expectant interest, so as to defeat the right of the wife in remainder when it falls in, should the husband be then dead. But, while the inefficacy of a husband’s assignment made before he acquired the right to reduce, and who did not live to acquire that right, is thus affirmed, both cases recognize the distinction made by Lord Lyndhurst in Honner vs. Morton, 3 Russ. 65, that, should the husband survive until the right falls in, and then be capable of reducing the same into possession, “ his previous assignment will operate on his actual situation, and the property will be transferred.”

The defendant seeks no aid from this Court. No act is to be done by him. If Abram Duke had been himself the expectant legatee, the circumstances detailed in the decree of the Circuit Court would be quite sufficient to warrant the decree which declines to grant him any assistance in assailing the title or disturbing the possession of the purchaser.

It is ordered and decreed that the appeal be dismissed.

Johnston and Wardlaw, CC., concurred.

Jippeal dismissed.  