
    BERG’S CASE. Mina Berg v. The United States.
    
      On the Proofs.
    
    
      The elaimanl, being the widow, executrix, and legatee of one Berg, brings an action in her own name to recover the net proceeds of cotton captured at Savannah. The cotton ivas owned by one Berg, a loyal citizen, who died before its capture. His will, dated June 1,1863, bequeathes his property to his wife for her use, and at her death to such of her children as she may bequeath the same to, <fe. The estate is -solvent. The cotton camelo the claimant’s possession before capture, and forms a part of the residuary properly. In June, 1868, nearly a year after this suit is brought, she is discharged from the duties of executrix by the proper court.
    
    I. The legal title of personal property is absolutely in tlie executor, and liis assent is necessary to vest a legacy in the legatee. With such assent, it vests in the legatee as from the date of the will. This assent may bo implied, and when the executor is legatee, it maybe proved by acts which imply assent. Thus where the executrix, being legatee, stores cotton in her own name, and after capture brings suit in her own name for the net proceeds, undor the “Abandonedorcapturedpi-opiertyaet,” (12Stat. L.,p.820,) she will he deemed to hold as legatee, and the suit rightly brought.
    II. Where a claimant has brought a suit under the “ Abandoned or captured property act,” (12 Stat. L., p. 820,) in her own right, as legatee, for the proceeds of captured property, the fact that the estate is closed, and she discharged as executrix after suit brought, does not affect her right to sue as legatee.
    III. Where a will gives the whole oí the personal estate to the widow for life, and, at her death, to such of the children as she may bequeath the same to, the remainder to the children is contingent on her dying-intestate, and being a mere possibility, gives them no present estaie; therefore they need not join-as co-claimants in an action to recover tlie net proceeds of a part of the estate, in an action under the “Abandoned or captured, property act,” (12 Stat. L., p. 820.)
    
      Mr, Biddle for tbe claimant:
    The claimant, Mrs. Mina Berg', placed sixty-eight bales of cotton for storage on the loth of April, 1864, in the warehouse of George Pattern
    The sixty-eight bales remained, on storage in said warehouse until taken in possession bj7 the United States military authorities upon the occupation of Savannah, in December, 1865.
    That the said sixty-eight bales of cotton, so captured by the United States, were the bona fide property of the claimant for a long time previous to the occupation of Savannah by the United States troops, is fully and clearly established.
    The proofs and evidence on behalf of the claimant fully establish her right to recover the proceeds of the sale of said sixty-eight bales of upland cotton, captured by Lieutenant Colonel Bausom, quartermaster United States Army, under the third section of the act of March 12, 1863.
    
      Mr. B. 8. Sale, special counsel of the Treasury, for the defendants:
    The claimant shows no title to the cotton in question. It was the property of her husband, Seigmund Berg, who died in 1863. His executor is the only party who can maintain suit. This suit is brought by the claimant in her individual name, and in her own right. She seeks to sustain her claim by proof of the will of her husband, and an order of the court of Ordinary of Charleston County, granted June 1, 1868, discharging and dismissing her from all liability as executrix, and claims evidently as legatee under the will. As such she cannot maintain the action; this right being given oniy to the executor. Nor is she, under the will, the only legatee of the cotton, but the whole estate is given to her for life, remainder to the children of the deceased in equal shares, with the privilege to claimant to dispose of the same by will among said children. She therefore holds but a life estate in the claim; and if the legatee could sue, she could only sue by joining the children.
    Again, the order discharging her was made in June, 1868, nearly a year after this suit was commenced; and this discharge is only one from • liability as executrix, and in no respect provides for passing over • assets to any other person. If she ceased to be executrix, an administrator de bonis non should be appointed, and he alone could maintain the action.
    The proof of loyalty is insufficient to bring the claimant or the deceased within the statute. There is no proof that they, or either of them, did not give aid or comfort to the rebellion, or to persons engaged in the rebellion.
   Loring, J.,

delivered the opinion of the court:

The petitioner claims of the United States the net proceeds of 68 bales of cotton.

It was objected on the part of the defendant that the cotton was the property of Seigmund Berg, and that his executrix is the only party who can maintain this suit, and that it is brought by the claimant in her individual name and in her own right. The petition filed in 1^67 shows that the suit is so brought.

By the common law the legal title of the personalty of a testator vested in the executor in autre droit, and the reason why the property so vested was, that the executor was responsible to creditors to the extent of the whole estate that came to his hands, whatever the direction of the will as to its disposition might be.

As the legal title of the property was absolute in the executor, his assent to a legacy was necessary to vest it in its legatee, who, without such assent, could maintain at law no action for it; but, on the assent of the executor, the legal title of the property vested in the legatee from the date of the will which gave it; and in all cases this assent of the executor might be implied as well as expressed.

The rule is the same when the executrix is the legatee, and her assent is to be procured like that of any other legatee, i. e., it may be expressed or implied. The rule as laid down by Gibbs, C. J., in Doe v. Sturgis, (7 Taunton, 223,) and adopted by the text books, (2 Williams on Executors, 1184,) is as follows: <{If an executor, in his manner of administering the property, does any act which shows he has assented to the legacy, that shall be taken as his assent; but if his acts are referable to his character of executor, they are not evidence of assent to the legacy.” And tlie question bere is whether the evidence shows that Mrs. Berg assented to the legacy given to her by the will, and when!

The evidence is that Mrs. Berg, on 15th April, 1864, stored this cotton with Mr. Patten, and took his receipt for it, as deliverable to her on payment of advances and charges. And this she did, not as executrix, but in her own name, and therefore expressly in her own right, exactly as she brought this suit. And it is not easy to see how she could have made her assent to the legacy and her appropriation of the cotton more explicit. And this was according to her right, for the evidence shows that the estate was solvent, and that the property was residuary property, and that fact was as fixed then as now, so that no right or consideration of creditors intervened; and such being the case, she had the same right legally and morally to deliver this cotton to herself, and fix its title in herself, that she would have had to deliver a specific legacy to the person to whom it was bequeathed.

It was objected on the part of the defendants that the order of the ordinary discharging Mrs. Berg as executrix was made in June, 1868, nearly a year after this suit was brought. But that is immaterial, for the only use of the discharge is to show that the estate was a solvent estate, and this cotton residuary property. It was not necessary to authorize the executrix to assent to the legacy and vest it in the legatee. And it could have no such force, for such acts of the executrix must be done while she is executrix, and not after her discharge from her office and the determination of her official authority.

The evidence of the receipt for the storage of the cotton shows that her assent to the legacy and her appropriation of the property were before her petition for her discharge, and this was proper. But it' does not show or indicate that such assent and appropriation were before the debts were jmid and distribution ordered. And the ordinary’s certificate of discharge states and proves that she had “ faithfully and honestly discharged the trust and confidence” reposed in her, and is conclusive evidence of her compliance with the requirements of the laws of Georgia in that particular.

On this part of the case the evidence shows that Mrs. Berg, as executrix, had assented to her legacy and appropriated the property, and vested the title in herself as early as 15th April, 1864, and thus owned and was possessed of it in her own right when it was seized by the United States in February, 1865.

It was also objected that, under the will, Mrs. Berg was not the only legatee, but the whole estate “is given to her for life, remainder to the children in equal shares, with the privilege to claimant to dispose of the same by will among the said children; and that if she could sue, she could only sue by joining the children.”

On this statement she alone could sue here, for she alone would be entitled to the possession of the property claimed. In such a case a court of equity might in its discretion require her to give security for the protection of the children’s interests, but we have no such power, and therefore could not trammel her recovery with any such requirement.

But the case is not as stated : in the first place, the remainder to the children is contingent on her dying intestate, and she therefore has the power and the legal right to defeat such remainder, so that the case for requiring her to secure the children’s interest does not arise on the facts.

In the next place, this contingent remainder of the children is postponed to her power, to bequeath the property to such of the children as she may elect, and this is a mere possibility in the children, giving them no present estate, for it cannot be known to which of them she may bequeath the property at her death, or which of them may then be living, so that neither of them has any right of possession, or right of action, or any vested interest.

We think the action well brought, and we find, as conclusions of law, that under the will of Seigmund Berg, a copy of which is hereto annexed, the said Mina Berg took an estate for life in-said cotton.

That as executrix of the will she assented to the legacy given to her thereby, and vested tlie title of the cotton in herself for life in her own right previous to its seizure by the United States in February, 1865; that she is entitled to maintain this suit in her own name and right.  