
    *Chapman v. Washington.
    [April, 1802.]
    Executors and Administrators — Executor as Legatee-Creditor of Testator. — Tf there be two executors, one of whom is a legatee of part of the personal estate; and a division of the testator’s property is made according to his will; subsequent to which, the legatee executor dies: A creditor, who after-wards obtains judgment against the surviving executor, cannot levy the execution upon one of the slaves allotted to the deceased executor, in the hands of his administrator.
    Same — Same—Same.—And if the administrator of the deceased executor obtains an injunction to the sale of the slave; which is dissolved, and the slave then sold under the execution, the creditor will, at the hearing, be decreed to pay the then value of the slave, If living, and his hires from the time of the sale: and an issue will be directed to ascertain them.
    Washington, as administrator of Philip Alexander, filed a bill in the high court of chancery, against Chapman, as administrator de bonis non of Chapman, the obligee, stating, That, in 1760, Gerrard Alexander made his will, and appointed his sons fiobert and Philip, executors. That, sometime after the probate, the slaves and personal estate were divided, whereby Philip’s share became vested in possession in his own right, and not as executor: notwithstanding which, he paid more than his proportion of the debts. That the defendant Chapman, brought suit and obtained judgment in 1787, against Robert Alexander, the surviving executor; which was afterwards revived, and the execution levied upon one of the slaves who had fallen to Philip, in the division; which a jury, summoned by the sheriff to ascertain the right, had improperly decided to belong to Gerrard Alexander’s estate, although Robert, the surviving executor, had property enough in his hands to satisfy the demand, and the slave taken by the sheriff was not liable for it. That the debt had been paid. The bill prayed an injunction, and general relief.
    The answer admits the division of the estate; but denies that Philip’s share was vested in possession after the division, and insists that it was liable to the execution. That the defendant knew of no other property belonging to the testator; but knows that the slave taken belonged to him. ^Denies that the debt has been paid; and avers, that Robert Alexander, the surviving executor, had frequently told him that it had not been paid, and promised payment; which declaration he repeated on his death bed, alleging that the debt must be paid. Does not admit that Philip paid debts to other people, as mentioned in the bill.
    The bill was amended, and charged that the slave taken upon the execution, did not belong to Gerrard Alexander, but was otherwise acquired; which the answer to the amended bill denied.
    A great number of depositions were taken ; and the plaintiff attempted to prove payment of the debt, and that the slave did not belong to Gerrard Alexander: But his whole testimony, as to the payment, consisted of the declarations of Robert Alexander, the executor, that he had paid it, in the lifetime of the preceding administratrix, to Hunter, who did not appear to have been authorized to receive it. One witness, (whose testimony was loose, and whose character was a good deal assailed,) said that the defendant told him that he believed it had been so paid to Hunter, but that he had no authority to receive. That the slave belonged to Gerrard Alexander’s estate at the time of the division, was not only not disproved, but the weight of the evidence went to establish it.
    Gerrard Alexander’s will was proved in 1762. Both judgments were, upon verdicts, against Robert Alexander as surviving executor. The first was obtained by the ad-ministratrix of the obligee in 1787; and the second by the defendant, in 1792, in a scire facias upon the first. The execution, under which the slave was taken, issued on the 12th of September, 1792.
    The high court of chancery first dissolved the injunction upon the first answer, in consequence of which the slave was sold under the execution; but, after the depositions were taken, the following decree was made: “In this cause, which came on to be heard on the bills, answers, exhibits and examinations of witnesses, the court, having considered '^allegations by parties, and arguments by counsel, doth adjudge, order and decree, that the defendant do pay unto the plaintiff the present value of the slave Dick, in the bills and answers named, if he be living, and of his hire since he was sold by virtue of the writ of execution therein mentioned; and for ascertaining such value, doth direct a jury to be impaneled, and charged to try an issue to be made up between the parties, &c.”
    Chapman appealed to the court of appeals.
    Randolph for the appellant.
    There is nothing to shew that the debt has been discharged. For the witnesses merely relate what they heard Robert Alexander, the executor, say, or what others heard him say. One of them indeed says, that the defendant told him that he believed the debt had been paid, in the lifetime of the former ad-ministratrix, to Hunter; but that he had no authority to receive it: which, if true, amounts to nothing: but the witness is discredited. Consequently, I assume it as a fact that the debt has not been paid. There is not the slightest foundation for the suggestion, that Philip Alexander derived the slave from any other source than his father’s estate: On the contrary, the original bill admitted, both answers confirmed it, and the depositions prove that he belonged to that estate. The only important question therefore is, Whether, as there had been a division of the testator’s slaves, this one could be taken in the hands of the administrator of Philip Alexander, to whom he was allotted at the partition? The division could not make any difference; for it can never be true, that the executor has it in his power, by accelerating- the division, to vary the rights of the creditors, and oblige them to encounter the delay of a chancery suit. The property, in the hands of the executor, is still assets, until the debts are all paid. The case differs from that of Lambert v. Burnley, 1 Wash. 308, in which it was decided, that the creditor should not proceed against one of the legatees only, but that all should contribute; for *the executor’s representative having the property in his hands, the creditor was not bound to look any further; and therefore was under no necessity of seeking redress against the legatees; for it was the business of the representative of the executor, and not of the creditor, to compel contribution. But the decree is erroneous under another point of view; for the plaintiff could not be entitled to the whole value of the slave; but was bound to deduct Philip Alexander’s own proportion of the debt.
    Warden, contra.
    Although there is no positive proof of the fact, there is some reason to believe that the debt was paid to Hunter, and that he had authority to receive it. But be that as it may, the slave could not be taken under the execution, as there had been an actual division of the estate, and he had been allotted to Philip Alexander; which was clearly an assent of the other executor, and vested Philip with the possession in his own right, and not as executor. Of course Burnley v. Lambert, 1 Wash. 308, is a complete authority to shew that the legal property could r not be divested, afterwards, at law, even had he been still living. But, as Philip was dead at the time of the judgments, and the plaintiff no partj' to either of them, the conduct of the defendant was doubly reprehensible ; for as the slave had lawfully come to the plaintiff’s hands as legal assets, his possession ought not to have been disturbed, without affording him an opportunity to be heard.
    Cur. adv. vult.
    
      
      See monographic note on "ifixecutors and Administrators’' appended to Rosser v. Depriest, 5 Gratt. 6.
    
   LYONS, Judge

Delivered the resolution of the court, that the decree of the high ^court of chancery was to be affirmed.  