
    Jas. H. Alexander v. R. M. Williams, Sheriff.
    
      Tried before Mr. Justice Evans, at York, Special Term, September, 1834.
    tiiB^executo”4 if b<ma fide and withlegatee to defraud «¡redi-gacyIn u!a legal eontroiofthecx° ecutor, or any to reacKproporty through an ex-theexecutof^and •saíe'of'thlf’ a cyVider an5ex-the^exccuto? would be void. ’
    of"a legacy by0" i^e.iorionr sent of*the exo-thírVgahS'íie creditors of the testator.
    Trover for a negro, which the defendant, as sheriff of York, had levied on and sold, to satisfy a decree of the Court of Equity, in favor of Mary Miller, against the Executors of Harmon Alexander, deceased. The plaintiff claimed in right of his wife, the daughter of Harmon Alexander, to whom he was married in 1832. Harmon Alexander, by his will, dated in October, 1826, bequeathed the negro in question to the plain-wife, and another to his other daughter, and made a general disposition of the balance of his estate. He died shorlty afterwards, and his executors, under an order from the or-binary, sold his whole estate, amounting to about #5,000, and. became themselves the principal purchasers. The testator, at the time of his death, was owing several debts, amounting in the whole to about #2,500, for a part of which the executors gave their individual notes. Judgements were obtained against the executors, individually, and on account of the estate, on which the whole of the testator’s property, except the specific legacies, was sold ; but the executors having acquired title to the greater part of the property by their purchase at their own sale, the proceeds of the sale by the.sheriff, of the property thus purchased, were applied to the judgements against the executors as individuals, leaving some of the judge-ments against the estate still unsatisfied. The negro was delivered to the plaintiff’s wife, by the executors, in January, 1827, and there was ample evidence that the executors had assented to the legacy. One of them had hired the negro from the plaintiff, and she had been either in the actual possession of the plaintiff, or hired out by her, from 1827 until July 1833, when the levy was made.
    The bill of The Executors of Harmon Alexander v. Mary Miller, was filed in May, 1827; there was a cross bill and an issue at law; the final decree of the Court of Appeals was pronounced at December Term, 1832, and the execution under which the negro was sold, lodged, June 1834.
    For the plaintiff, it was contended, that the assent of the executors vested the property in the legatee, whose right could not be affected by the subsequent devastavit of the executors ;• and even if this view should not be correct, that still the plaintiff had- acquired title by the statute of limitations. On the part of the defendant, it was insisted that the whole and every part of the testator’s estate was liable for his debts ; that the decree under which the property was sold, established the existence of a debt- of the testator, at the time of his death, for which his estate, whilst in the hands of the’ executor or legatee, was liable ; and that the statute of limitations could not confer title as against this creditor, for proceedings had been-instituted in due time, and it was not until 1832 that a decree was pronounced 'establishing her right, from which time only could-the statute run. '
    His Honor charged the jury that the assent of the executors, if made bona fide and without collusion with the legatee to defraud the creditors, vested the legacy in the legatee beyond the power and control of the executors, or any creditor who had to reach the property through an execution against the executors : that after assent, the property was no longer in the possession, power or control of the executors, and it was against such property that the execution issued. That he was not to be understood as saying that a creditor has no remedy against a specific legacy after assent; but only that he cannot sell the legacy by an execution against the executors. That the possession of the legatee, in her own right, for more than four years, would give title, under the statute of limitations, as-against the executors; and if they were barred, of course, also,, were all who claimed under or through them.
    1 Harp. 20.
    1 Hill. 249.
    The jury found a verdict for the plaintiff.
    The defendant appealed, on the ground of error in the charge of the presiding judge.
   O’Neall, J.

In this case we concur with the judge below in his view of the law.

The assent of the executors to the legacy vested the property in the legatee, and, if this was fair, and bona fide, a creditor, whose debt is not paid from other circumstances, such as a subsequent insolvency of the executor, or a loss of funds (without the fault of the executor,) reserved for the payment of debts, could not pursue the property in the hands of the legatee by execution. His remedy would be in Equity, against all the-legatees, for a contribution.

The case of Rice ads. Spears and Galbreath, State Rep. 20, is decisive of this point in the case.

Upon the question as to the statute of limitations, we agree also with the presiding judge. A possession of four years, in one’s own right, of a chattel, is a bar against all who are not un^er some legal disability to sue. The right of property was in the executors ; and if they even did not assent to the legacy, yet the adverse possession of the legatee would bar their right of action, and of course the execution creditors. For they can only claim through or by the executor’s title; that is, if the executors have no. legal right to the possession of a chattel, generally, a creditor of the testator cannot seize the chattel in execution. There is one exception created by the case of Farr v. Newman, 4 T. R. 621, and recognized in the case of M’Neill v. Jones, 1 Hill, 84; as where a chattel belonging to the testator has been sold for the debt of the executor, there it is permitted to the creditor of the testator to seize it in execution. But even in that case, after four years possession, the statute would, I think, be a bar, on the authority of the case of M’Rae v. Smith, 2 Bay, 339.

Rogers, for the motion.

Williams & Hill, contra.

The motion for a new trial is dismissed.

Johnson and Harper, Js. concurred.  