
    Richard Rice, ads. Samuel Spear and James Galbreath.
    
      JV. H. residing ill Virginia, by his wilt directs his negi o slave, (J. to be free after the expiration of his apprenticeship. Vo this the executors assent, the estate being, independently oj this property, solvent; and C.is suffered to go at large as a-freeman. C. is afterwards levied upon and sold, under afi.fcu against the executors of TV. H. Held that the sale was void and C. entitled to his freedom.
    
    Tins action was instituted by the plaintiffs, as guardians of negro Charles, to- establish his freedom, under the will of his- former owner, Wm. Hutt, late of Westmoreland county", Virginia, deceased. The followingis the clause in the will, “ It is my will that negro boy Charles shall continue with James Piggott, for four years, to learn the tailor’s trade, after which time he shall be free.” His will bears date the 18th November, 1799. On the 23d of December, following, the will was admitted to probate and duly recorded* Samuel Templemah, the surviving executor under the will of Wm. Hutt, deposed, on his examination, that he was acquainted with the boy Charles, and by his evidence identified the ward of the plaintiffs as the same. He further testified, that he had every reason to believe that the estate of Wm. Hutt will he sufficient for the payment of all his debts; and the witness pointed out, very explicitly and satisfactorily, the reasons upon which his belief rested. That he had no claim, as executor, against the freedom of Charles: that as soon as he had qualified as executor, under the will of Wm. Hutt, to wit, on 4th Monday of December, 1799, he together with the other then executors considered Charles as free, so soon as his apprenticeship should expire. That soon after the death of Wm. Hutt, Piggott, the tailor, died; at whose death the negro Charles went about at large for several years in the county of Westmoreland, perfectly free and unrestrained by either of the executors, or any one else. That the executors had no claim upon him, nor did the witness ever hear of any claim set up by any one, until within a year or two last passed, by a Mr. Chandler, who claimed him, as the witness had been informed, as administrator of Wm. Rice, a former deputy sheriff of Westmoreland, who it was said, had bought him fifteen or twenty years ago at a sheriff’s sale. The witness testifies, most expressly, that he, the witness, never consented to his being taken in execution and sold as a part of the estate of Wm. Hutt: that this negro was not inventoried as a part of the estate: that he then, and does now consider the said negro Charles entitled to freedom. On the part of the defendant, was adduced in evidence, the proceedings had in the County Court of Westmoreland, wherein John Crutcher was plaintiff, and the executors of Wm. Hutt defendants; wherein jugdment by d.- fault was given and damages assessed to $236 5 cents; the, execution thereon issued, which was levied on negro man Charles, and the sale of the negro, by the sheriff, to Wm. C. Chandler, for $23 68. Several witnesses were examined to shew that the defendant’s title to the negro in question, had been regularly and correctly dednced from the sale thus made of Charles, considered as a part of the estate of William Hutt. The presiding Judge considered, that as Charles went at large as a freeman, by the assent of the executors, under the will of Wm. Hutt, and as the surviving executor had testified that he had no claim-upon him, this assent on the part of the executors established the freedom of Charles; and that if this act, on the part of the executors, constituted a devastavit, they thereby made themselves personally responsible for tlie value of the negro. That die emancipation of Charles, by the will of Wm. Hutt, was, in the nature of a legacy, and to he governed by the same rules; consequently that the sale of Charles, by the Sheriff of West-moreland county, was void;, he being at the time a freeman by .-the will of Win. Hutt, and then at large by the assent of til? 'executors. The jury found accordingly, with $85 damages. The defendant appealed on the ground of misdirection by the Judge, as to the law of the case.
   The opinion of the Court was delivered by

Mr- Justicy Gantt.

The important facts embraced in this-case are, that the negro Charles was, by the will of Wm. Hutt, has former master, set free: That the executors in pursuance thereof, assented to his going at large: That he did so for years, and was considered a freeman: That lie was not inventoried as a part of the estate: That the executors never did, nor does the surviving executor now consider him as composing a part of the estate: That the estate will be able to pay debts. Whether, tinder all these cir-cumstanc.es, Charles is to be considered a freeman, is the question? By the will, freedom was bestowed upon Charles, and the executors, by their assent, put him in possession of it. In principle, it is analogous to the payment of a legacy or the release of a debt on the part of the executors. Executors have that power, and if fairly exercised, no third person lias a right to call the act in question.

Suppose the testator had, by a deed of manumission (and the will may be considered in that light) bona fide given freedom to Charles. Could the act have been avoided by creditors, after the lapse of time which intervened in this case? I should hold it impossible. There is something palpably irregular and wrong in seizing upon and selling this man under the execution, without a previous investigation of his claims under the will and the executors assent thereto.

It is a species of administration upon the supposed property of an estate, unknown to the law. The regular course would have been to have caused this man Charles to be included in the inventory; or by some act of the law, to have rendered' him amenable to the demands of creditors, and this at the instance of the executors. But the executors had no agency in this transaction. The evidence of Mr. Templeman shews very satisfactorily, that the estate will be sufficient to pay the debts. Why should this creditor therefore have invaded the sanctuary of freedom, to come at his rights? I think that the verdict in this case is supported by law, and that it cannot be' disturbed.

The motion is refused.

Richardson and Johnson, Justices, concurred.

I agree that there should be a new triah — C. J. Cohoch-. -  