
    Walden Executor of Walden v. Payne.
    October Term, 1794.
    Slaves — Nature of Property — Payment of Debt. Slaves from their nature are chattels; and though in the hands of executors they are exempted from the payment of debts, where there is a sufficiency of other personal estate, they are nevertheless assets. — They are real estate only in particular cases, such as descents. &c.
    Executor — Distribution of Estate — Refunding Bonds.— An executor is not bound by the order of a County Court, directing a division of the testator’s estate amongst the distributees, to deliver up slaves, without reserving a sufficiency to pay the debts, or taking bonds to refund.
    Construction of Statute — Scale of Depreciation. — The Act of November, 1781, c. 32. establishing a scale of depreciation, does not extend to contracts made antecedent to the 1st of January, 1777.
    Pleading and Practice — informal Joinder of issue — Verdict. — The pleas conclude with a verification, and the record states, “that to these several pleas the plaintiff replied generally, and issue was thereupon joined.” This, though informal, is sufficient after verdict.
    This was an action of debt, brought by the appellee against the appellant, in the District Court of Eredericksburg, on a bond dated in December 1776. The defendant put in the following pleas: 1st, Payment. 2dly, That at the time of issuing the original writ in this suit, he had fully administered all the goods and chattels of his testator, except ^430, paper money of the value of specie and that he hath not. nor at the time of suing out the original writ in this cause, nor at any time since, had any goods of his said testator in his hands unadministered, except the sum aforesaid. 3dly, That the non-payment of the debt was owing to the plaintiff, wherefore and by virtue of the act entitled “an act directing the mode of adjusting and settling the payment of certain debts and contracts, and for other purposes,” he prays the court to award such judgment as to them shall appear just and equitable. The two first pleas conclude with a verification, and the record states that to these several pleas the plaintiff replied generally, and issue was thereupon joined.”
    The jury found a special verdict as follows : that the defendant on the 27th of November 1778, had the estate of his testator duly appraised according to law, and at the same time *proceeded to sell the whole of the personal estate except slaves, having by advertisement previously published in the gazette, given notice of the sale, and required all the creditors of the estate to make known their demands, and to receive payment. That the defendant on the first day of January, as well as in November 1778, offered to pay to the plaintiff the amount of his debt, including interest thereon, in the then circulating paper money, which the plaintiff at each time refused to receive. That the non-payment of the debt was owing to the creditor, the same having been offered and refused as aforesaid. That the defendant sold a sufficiency of the estate together with money in the house, and debts due to the testator, to pay all the debts owing by the estate. That on the motion of one of the legatees, an order was made by the County Court of Stafford in September 1778, appointing commissioners (of whom the plaintiff was one and acted as such) to divide the estate of the testator according to his will, in consequence of which, the estate remaining unsold and not disbursed in the payment of debts, or offered to the creditors, was on the 27th of November (more than a year after the testator’s death) divided, and the share of each claimant delivered, no bond to refund being taken. That the estate so divided consisted entirely of slaves. That the money offered as aforesaid, was of the paper money then in circulation, and was liable and subject to the law for calling in and redeeming the said paper money, at one for 1000, and that the defendant had received of the same sort of money, to a greater amount than the plaintiff’s demand, for debts due to his testator, .and contracted previous to the year 1776. That one of the legatees is insolvent, and two others have removed to parts of this state, very distant from the defendant. That the defendant divested himself of the whole estate of his testator before the institution of this suit, in paying the debts, and in obedience to the order and division aforesaid, except ^427 paper money, so offered by him to creditors. That the defendant has not paid the debt in the declaration mentioned. If upon the whole, the law be for the plaintiff, then they find for him, the debt in the declaration mentioned, to be discharged by the payment of the principal and interest, or so much thereof as to the court might appear just and equitable ; otherwise for the defendant. Upon this verdict, the court gave judgment for the plaintiff for the full amount of principle and interest, from which the defendant appealed.
    Marshall for the appellant.
    I shall insist first, that slaves are not assets in the hands of executors, if the personal estate be *sufficient to pay the debts. If so, then secondly, that the defendant has fulls' administered the assets. Thirdly, if these points be against the appellant, still the court may give an equitable judgment.
    1st, Slaves by the act of Assembly passed in 170S, C. 3, are declared to be real estate with certain exceptions; and tho’ some of the exceptions render them like to chattels, yet, there is no law which declares them to be assets, nor can the executor dispose of them as he may of the personal estate, for the payment of debts, unless there be a deficiency of the latter; in that case only can he sell slaves. The laws passed in 1727, and in 1748 were made, because slaves having been declared to be real estate, could not, as such, have been applied by the executor to the payment of debts, and the legislature, in these laws, have been carefull to distinguish this species of property from chattels. If we refer to other laws, we shall find, that slaves are always contemplated as a species of property totally unlike to personal estate. Thus, in the law respecting distributions, slaves are not comprehended under the words goods, chattels and personal estate. Again, by the same law, the executors or administrators may distribute the personal estate after nine months from the death of the testator, taking bond and security to refund. But by the act of 1748, C. 3, § 30, the slaves of a decedent are to continue on the land to finish the crop (where the testator or intestate dies between the 1st of March, and the 25th of December,) until the latter period, when they are to be delivered to those having a right to them, well cloathed at the expence of the estate, and their crops are declared to be assets. Now mark the difference between slaves and personal estate. The" latter may be distributed at one time, the former shall be delivered at another; in the latter, security to refund may be required, but not in the former. Why? Because they are not assets, nor as such liable to pay the debts, unless the personal estate be deficient. The obvious conclusion is, that this sort of property is made an auxiliary fund for the payment of debts, where the assets are insufficient, and the executors are empowered by a special law, to sell them for that purpose only. The executor in this case had no power to retain possession of the slaves, there being a sufficiency of personal estate, 1st, because the law not only imposed it as a duty upon him to deliver them up, but the judgment of a court having Competent jurisdiction compelled him to do so, and this order, he was bound to obey, without a power given to him of protecting himself, by taking security to refund. Let it also be remarked, that it would be exercising an unnecessary, as well as an unjust rigor against the executor, to charge him with a devastavit, when the legatees may in a court of equity be resorted to. 2 Vern. 75, 205 — 1 Vern. 94, 162 — 2 Ventr. 360, 358 — 2 P. Will. 447. Should it be contended, that an executor before he delivers or pays a legacy, may demand security to refund, and that if he neglect to require such a security, he cannot compel the legatee to refund, I answer: 1st, that the cases on this head relate to personal estate only, which are always assets, and liable to pay debts; whereas, slaves are real estate, and are liable to pay debts, only as an auxiliary fund; that the executor is obliged to deliver them up within a limited time, without security, unless there be a deficiency of the personal estate. 2dly, The delivery in this case was not voluntary.
    2d point. The verdict finds, that all the estate hath been administered except the slaves which were delivered to the commissioners, to be divided under the order of court, and ^427 paper money. Now this money was either funded, or it was not. If the former, it remains a debt due from the public (worth according to the scale 8s. 6 specie) payable at a future day, as the public acts of the legislature prove. If the latter, it is taken out of circulation by an act of the government, and thereby deprived of all its value. In either point of view, it forms no part of the assets in the hands of the executor, being a debt due and uncollected. 2 Bac. ab. 417.
    To charge the executor with a devastavit, he should be guilty of mismanagement, misapplication, fraud, or of paying legacies when the assets are insufficient to pay the debts. 2 Bac. ab. 435. The executor in this case did not mismanage, nor misapply the assets, by selling the personal estate and offering the money in discharge of the debts, because this was a part of his duty. Neither has he left debts unpaid, by disposing of the assets to legatees, if I am right upon the first point. If then, the executor is subject to no blame for delivering up the slaves under all the circumstances of the case, there is no possible ground left to charge him, unless indeed he can be chargeable with the consequences of a legislative act which destroyed in his hands the funds ^'reserved for paying the debt; an idea too monstrous to be contended for.
    3d point. The issue upon the third plea is with the defendant, the jury having found, that the non-payment was owing to the creditor; and therefore, the court may give an equitable judgment on the case. I will not repeat all the equitable circumstances which appear to favor the executor, believing that no case ever exhibited more than the present. The case of Kenner and Turner in the old General Court, was not so strong in favor of the defendant as the present, for in that, the court interfered, even after a verdict rendered upon the plea of payment. The case was, that Turner, who was indebted to Kenner, offered to pay the debt, (without making a legal tender) which was refused. The court scaled the debt as of the day when the offer was made, because Turner, holding the money in his own right, was presumed to have afterwards made use of it, it not being improper in him to do so; it was therefore thought just, that he should sustain the loss by subsequent depreciation. But in this case, the executor, acting as a trustee, ought not to be presumed to have used the money, because it was improper that he should have done it, and therefore, it would be unjust to make him bear any part of the loss by depreciation, but it should be borne by the creditor, for whose use the trustee held it.
    Ronold for the appellee.
    There might be some weight in the arguments drawn from? the hardship of this case, if the jury had not expressly found, that the executor had notice of the debt in question before the division took place. But the arguments chiefly relied upon are 1st, that slaves are assets only sub modo. 2dly, That they were delivered to the legatees under the judgment of a court. In answer to the first, I would observe, that slaves in the hands of an executor, resemble personal chattels in almost every respect; for 1st, the possession of them belong to the executor. 2dly, They cannot be taken by a legatee without his assent, and 3dly, They are subject to the payment of the testator’s debts.
    That the possession of them belongs to the executor Is evident, because he is to deliver them to the legatee, which he could not do, if he had no right to possess them, and they, like the personal estate, are to be inventoried and appraised,  which would be absurd, if they were considered as real estate. That the executors assent to vest the possession in the legatee is necessary, *is not only proved by the law just alluded to, but is necessarily implied from the power given him to sell them for payment of debts. These circumstances form the strong line of distinction between real and personal property. But it is contended, that they cannot be sold but as an auxiliary fund to the personal estate. This is equally the case with specific legacies, which cannot be sold, unless there be a deficiency of other property, and yet it never was contended, that they are not assets. Another circumstance is, that the penalty of an executor’s bond, is always so fixed, as to cover the supposed value of the slaves, as well as of the personal estate. Were it otherwise, an executor might waste that part of the estate, so as to defeat the rights, not only of creditors, but of others. The truth is, that slaves, though real property in a course of descents, are considered like other chattels in cases where the executor has a power over them for payment of debts. They cannot be sold any more than specific legacies can, for the purpose of paying pecuniary legacies, nor even debts, unless there be a deficiency of the personal assets.
    As to the order of the County Court, I do not conceive that it was obligatory upon the executor, as it was made upon an ex parte motion, and without a regular suit. There is no law which authorises this mode of proceeding, and consequently the order was entirely extrajudicial. Besides, the executor was bound to oppose it, and to state the necessity of his retaining the possession until all the debts were paid; this at least he ought to have done, before he. could attempt to excuse himself against the consequences of his having obeyed it to the prejudice of others.
    As to the finding upon the third plea, it surely cannot avail the appellant, because the act pleaded and relied upon, relates by express words to contracts made after the 1st day of January 1777, and this was entered into prior to that date. The preamble of the law states the inconveniences resulting from the depreciation of the money, in respect of contracts entered into between the 1st day of January 1777, and the first day of January 1782, and is therefore inapplicable to all other cases. Besides, if a legal tender had been made, yet the jury should have found, that the money was such, as might be lawfully tendered, which they have not done.
    Marshall in reply. It must be admitted, that the decision of the County Court -was not made upon proceedings regularly conducted ; yet as that court had jurisdiction over the subject, the judgment standing in force and unreversed, was obligatory upon the executor.
    *It is true, that the 2d section of the act of 1781, is confined to contracts made after the 1st day of January 1777, but it does not follow that the law is confined entirely to contracts entered into between the periods mentioned in that section. The third section (since it declares, that execution shall not issue upon any judgment theretofore obtained, before December 1783;) obviously is not, and why should the 5th section, which is as general as language could make it, be restrained in its operation, when the mischief intended to be remedied, is the same? If it were just, that an equitable judgment should be given upon a contract made on the 1st of January 1777, where the non-payment was owing to the creditor, is it not as much so, if it had been made on the last day of December 1776? And since the words of the 5th clause of the law, do not expressly confine the cases to particular contracts, the court will so construe the act, as to extend the relief to every case coming within the mischief.
    An objection which was over-looked in opening the cause, may here be mentioned; it is, that no issue is made up. The pleas conclude with an averment as it was proper they should, to which there is no replication. The case of Stevens and Taliafero (ante vol. 1, page 1SS) is in point.
    Ronold. There is certainly no ground for this objection after verdict, and a de-fence made. The record states, that the plaintiff replied generally to the plea, and that issue was thereupon joined. Although the pleadings might have been more formal, yet it is too late after verdict to make an objection.
    
      
      f Executor — Distribution of Estate — Refunding Bonds. —As to w-hether an executor can refuse to pay a legacy, or to make distribution of the residuum, unless the legatee or distributee will give him a refunding bond, see the principal ca.se cited in Whitehorn v. Hines, 1 Munf. 585. See monographic note on "Executors and Administrators" appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
      Pleading and Practice — Trial of Issues.- It is well settled that, though the j ury are sworn to try the issue, yet if several Issues are joined and the verdict of the jury responds to them all, the appellate court will disregard such irregularity and consider that all the issues have been tried by the jury. The Hirst Nat. Bank v. Kimberlands. 16 W. Va. 572, citing the principal case; White v. Clay. 7 Leigh 68: Baylor v. B. & O. R. R. Co,, 9 W. Va. 270. To this point, the principal case Is cited with approval in Baylor v. B. & O. R. R. Go., 9 W. Va. 282.
      Statute of Jeofails — Joinder of issue. — The statute of jeofails cures misjoinder or informal joinder of issue, when it appears that the cause has been tried upon its merits, as though the issue had been formally joined. But it does not cure the nonjoinder or want of issue altogether. 4 Min. Insts. (4lh Ed.) 942, citing Walden ®. Payne, 2 Wash. 1: Moore v. Mauro, 4 Rand. 488; White v. Olay, 7 Leigh 68; Southside R. R. Go. v. Daniel. 20 Gratt. 361; Stevens v. Talia-ferro, 1 Wash. 155; Totty v. Donald, 4 M/unf. 430; Sydnorv. Burke, 4 Rand. 161; Lockridge v. Carlisle, 6 Rand. 21; McMillion v. Dobbins, 9 Leigh 422. See monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
    
      
       See this act recited in a note to tbe case of Watson and Hartshorn v. Alexander, ante, vol. 1, p.'341. — Note-in Original Edition.
    
    
      
      Act of 1737, C. 4, § 7.
    
    
      
      Act of 1748, C. 3, § 29.
    
    
      
      Act of 1748. 0. 8, § 22.
    
   LYONS J.

delivered the opinion of the court. The principal point made in this cause on the part of the appellant is, that slaves are real estate, and can only be considered as assets in the hands of the executors sub modo.

Slaves from their nature are chattels. They were originally so, and the law made them real estate only in particular cases, such as in descents &c. But in most other instances, and especially in the payment of debts, they were declared to be personal estate. It is true, the law has protected slaves from distress, or sale, where there is a sufficiency of other personal estate to pay debts or levi es, and in this respect they differ from other chattels; but this qualified exemption does not change their nature, or give to them the qualities of real property. Slaves therefore, being clearly assets in the hands of an executor, and liable to the payment of debts, the executor had a right to demand security of the legatees before he delivered them up, and a court of equity would not have compelled him to part with the possession, * without such security being given, upon the principal of making him do equity who would have it. The executor appears in this case to have consented to the division directed by the County Court, since it does not appear, that he disclosed the fact of debts subsisting against the estate, or that he opposed the order which was made upon any principal whatever. That order should be construed according to the reason and justice of the case, and that it was intended only to compel a division of the estate which should remain, after satisfying all legal demands against it. If the executor, with a knowledge of this claim, chose to deliver the slaves to the legatees, without taking security to refund, under an opinion, that he had money in his hands to satisfy the debt, he might have made a legal tender of the money, and thus have exonerated himself. But this he did not do. The executor being a trustee for creditors, ought to have taken care to keep enough in his hands to satisfy them, and it is no answer to their demand against him to say, that they may pursue the legatees. They are under no obligation to follow the estate, though they may do so, if they please. Whether the executor has subjected himself to a devastavit or not, would be a premature enquiry at this time; when a suit is brought suggesting a devastavit, that question may properly be decided.

As to the other objections, there is no weight in them. The act of 1781 relied upon in the third plea, does not extend to contracts made antecedent to the 1st of January 1777. This act has been greatly misunderstood. The principle of the decision in the case of Kenner and Turner was soon after reconsidered and corrected; for it was absurd to scale specie debts. Whether the executor in this case kept the money or not, does not appear; but if he did not make a legal tender and keep it, it was his own fault.

Tho’ the issues are not formally joined, yet they have been fairly tried, and being" found by the jury, it is now too late to seek an advantage in consequence of that informality.

Judgment affirmed.  