
    Dorsey vs. Smithson.
    Arpear from Harford county court. An action of replevin was brought by the appellee against the appellant, and the following c$se wg,s stated for the opinion of the court. The property replevied w;as part of the property contained in a bill of sale from E. Smithson to the plaintiff, (now appellee,) dated the 12th day of .Search 1817, executed by her, she being then the owner of said property, and acknowledged on the same day before a justice of the peace, but not recorded as the act of assembly directs? it was. made for the consideration of love and affection to the plaintiff) he being her nephew, and ¡pot wi.th an intention of defrauding her creditors. All the property remained in the hands of the vendor, from the date of the bil} of sale till her decease, except a negro man named Jim, who was delivered by her to the plaintiff at the time the bill of sale was executed in the name, of the whole, and remained in the plaintiff’s possession from that time, Thomas Jiyres obtained a judgment against'E. Smithson«, at August term of Harford pounty court 1817, for the sum of 81782? wliich action was on'the trial docket at the preceding March term, the month and year when the bill of sale was executed, and which action was called op for. trial on the day before or after the date of the bill of sale, and then continued. The said judgment was rendered against E. Syiiihson, as. the executrix of her former husband,1 upon whose estate she had taken out letters testamentary, and she gave bond, with the plaintiff and defendant in this .cause as her sureties, for the payment of all debts and legacies due from the estate of her husband. rJLhe defendant in this causp pai.d $400 of the judgment ofJiyres for, E. Smithson, on the 20th of March 1818, and is now a creditor of her estate to that amount, she having. ■ died pn the 20th of June 1818. By her last will and testament, elated on the 19th of June 1818, amongst other tilings; slip bequeathed as follows, viz, ‘‘I give and be.queath unto my piece, Elizabeth Dorsey, all and singular the personal estate or. property of every kind and description which I shall bp possessed or own at my death, excepting all the right I now; or then may have in negro slaves, to her the said Elizabeth Eorsey, her heirs and as-; signs, for ever,” &c. and appointpd the'defendant her executor. Elizabeth Dorsey,'the d.evisee and legatee in said will, is the wife of the defendant, the execqtor. The defendant took out letters testamentary on the 30th of July 1818, and took possess.ion of the property replevied in this suit, and has assets in hand sufficient to pay the debts . due from her estate, exclusive of the property contained in the bill of sale. There was no agreement between E. Smithson, and the plaintiff, that the bill of sale, should be inoperative at any time after it was executed, or that she should hold the property in her own right. The county cédrí gave judgment pro forma for the plaintiff, ami the defendant appealed to this court.
    
      A bil! of sale persona! property executed andacknow edged, but Dot recorded, is Void as to eredi« tors, if made to their injury; but is binding on this donor, her executor*, admiimtra* tors ami assigns, and all claiming-under her or them, both ->tcom~ •non law, and undel* the apt of assembly of 1729, ch. 8, i. 6,
    The executor of the donor has no right to the goods and chattels mentioned in the bill of sale. He 5s estopped to allege ihat the deed is in fraud of 4reditois;*&nd the property is not assets m his hands» and as executor he is not accountableior it. ' v
    If the hill of sale is fraudulent to creditors, the donee is chargeable to them to the full extent of ihe property transferred, as executor de son tort of the dono’r. • 1
    ■^¿¡Jere iUay ke a rightful executor, and an executor de sou tort of the same person, and a t t^e same
    
      The cause was argued before Buchanan-, Earle, Martin, Dorsey, and Stephen, J.
    
      II. Johnson, for the appellant,
    contended, that the judgment ought to be reversed — !. Because .notwithstanding ihere were assets sufficient íé pay the debts of E. Smith • son, yet at the timé the suit was brought, the appellant, as her executor, had a right to the possession of the property sn controversy, until he ascertairiéd whether there was a sufficiency of assets. 2. Because he vías a creditor, and as against him the bill of sale was absolutely void, and he had a right as creditor to look tb this property as the means bf satisfying his debt, though there wag other property sufficient. He referred to the act of 1729, ch. 8, s. 5, and Smith vs. Williamson, 1 Harr. & Johns. 147.
    
      Murray, for the appellee,
    cited 3 Bac. Ab. tit. Fraud, (C) 314, and the act of 1729, ch. 8, s. 6.
   The opinion of the court was delivered by

Earle, J.

The bill of sale, which gate rise to the dispute between the parties in this cause, was executed and acknowledged before a justice of.the peace, but was not recorded as the act of assembly directs.

It is void as to creditors, if made to their injury, but it Is binding on the donor, her executors, administrators and assigns, and all claiming under her or them, both at common law, and under the act of assembly of 1729, ch. 8, s. 6. Being an obligatory instrument on the donor, and those claiming under her, the appellant, as her executor, has m right to the goods and chattels mentioned therein, nor is there any legal excuse for his possessing himself of them even for a time. He is estopped to allege that the deed is in fraud of the creditors, and there being lio other ground on which he can contend for the property with the donee, William Smithson, the same is not assets in his hands, and he, as executor, is not accountable for it. The responsibility of an executor must depend on the means the law places in his power, to possess himself of the property-lie is to hold in aider droit, and where he is not armed with authority to tate possession of any specified chattel, he is Rot answerable for it. The goods and chattels in dispute not being assets belonging to the personal estate of Eled~ nor Smithson, it necessarily follows, that the appellant, as her executor; is without a legal excuse for attempting to possess himself of them, even for a limited ti me He could only do so for the purpose of administration, and they, wfere clfearly riot Objects tó be administered on by him. If the bill of sale under Consideration is fraudulent to creditors; William Smithson, the appellee, is chargeable to'them, to the full extent Of the articles, transferred, as executor, de son tórt of Eleanor Smithson. Any or all of lier creditors may süe.him, as exfecutor, in liis own' wrong, rind secure their debts' by executions on the property.' And nd reason appears to the court; why the appellant himself, if he is a prejudiced creditor, rimy riot sue in this character, and recover his debt of Smithson, the rippellee. His being the rightful executor Will not obstruct bis action, for there are many instances, rind if fraud exists in this, it is one of them, where there may be a rightful executor; and an executor de son tort, of the same person, at the same time. See 3 Bac. Ab. tit. Executors & Administrators, (B) 22. The appellant also claims the right to possess himself of the property mentioned «rthfe bill of sale, because beds a creditor of his testatrix, the deceased. Mrs; Smithson. This is not allowable to him more than to any other creditor. It is not for a Creditor tct carve for himself and seize oil his debtor’s property wherever it is tó' be found, but he must resort for redress, when his right is withheld from him, to his action at law. Neither can the appellant defend Iris possession of the disputed property as a creditor, against this replevin, on the' score of fralud in the donor. But if it were conceded .to him to be a legal defence, yet it would not avail in this cause. For it is distinctly admitted, in the' case stated, that the' cfonor executed the bill of sale upon a lawful consideration, and Without an intention to defraud her creditors, and that at her'death, she left estate sufficient to pay all her debts, exclusive of the property transferred by that instrument.-

In every view we have taken of the decision of the court below, we approve of it¿ and therefore we affirm their judgment.

JUDGMENT' AFFIRMED._  