
    Moore’s Executrix v. Ferguson and Others.
    Wednesday, October 9th, 1811.
    1. Husband and Wife — Separate Estate — Profits.—A wife, who lived with her husband, and was maintained by him, cannot, after his death, demand an account of profits, which he received, of a separate estate settled upon her; no such demand having been made by her in his lifetime.
    2. Executors — Decree against — De Bonis Proprlis. — A decree, and execution thereupon, against an executor, or administrator, for a balance due on his administration account, should not be against the goods and chattels of the decedent in his hands to be administered, but against his own goods and chattels.
    See the same point decided by Chancellor Taylor, in Barr v. Barr’s Adm’r, 2 H. & M. 26.
    In a suit in chancery, on behalf of the residuary legatees of George Moofe, deceased, against his widow, being his sole executrix, for a settlement of her administration account, and distribution of the balance due to the plaintiffs ; the defendant, in her answer, set up a claim, against the estate of the decedent, for the profits, in his lifetime, of sundry slaves, which, before the coverture, were her property, and, by a marriage settlement, bearing date the 10th of May, 1783, were conveyed to a trustee, “upon this express condition and trust, that, at any and every time she should think proper, after the said marriage should take effect, as well the property as the use of the said slaves, all or either of them, should be in the sole and absolute disposal of her the said Molly, either by will, or otherwise, either in the lifetime of the said George, or otherwise.”
    It did not appear that, in the lifetime of George Moore, Mrs. Moore exercised any act of ownership over the slaves, or, in any respect, interfered with his receipt of their profits. It appeared that she lived with him, upon the usual terms of man and wife.
    Commissioners, appointed by the county court, reported a balance against her of 4001. 8s. lOd. 1-2. upon the administration account; and, giving her credit for hire of her slaves from May, 1793, to the time of her husband’s death, amounting, by a particular statement of *items, to the sum of 9991. 11s. 8d. charged her, also, with the same sum, for her board and clothing during the same time, and the expense of partly raising' fourteen negro children.
    To this report the defendant excepted ; hut the county court decreed (accordingly) “that the plaintiffs recover against the said defendant 4001. Is. lOd. and costs, to be levied of the goods and chattels of the said George Moore, deceased, in the hands of the defendant to he administered, if so much thereof she hath ; if not, that then the costs be levied of the proper goods and chattels of the said defendant.”
    Upon an appeal to the superior court of chancery, this decree was affirmed ; whereupon, a farther appeal was taken to this court.
    Hay, for the appellant,
    admitted that, after examining all the authorities, he was not prepared to contend that Mrs. Moore was entitled to a credit for the profits of the slaves during her husband’s life.
    Munford, for the appellees,
    observed; that
    this admission' by Mr. Hay was very properly made; the authorities being clear that, although the wife may take a separate estate from her husband, and even have a decree against him in respect of such estate ; yet, if she do not demand the produce during his lifetime, and he maintain her, an account of such separate estate shall not be carried back beyond the year in which he died., 
    
    Wickham, on the same side. The decree is not sufficiently favourable to us. It ought to have been de bonis propriis ; the balance due on the administration account *being a debt from the executrix, for which she is personally responsible.
    
      
      Husband and Wife — Separate Estate — Profits,—See monographic note on "Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
      The principal case was distinguished in Roper v. Wren, 6 Leigh 40.
    
    
      
       Executorf. — Decree against — De Bonis Proprlis,— To the point that a decree against an executor or administrator for a balance due on his administration account should be de bonis propriis and not de bonis testatoris, the principal case is cited in Templeman v. Fauntleroy, 3 Rand. 446; Franklin v. Depriest, 13 Gratt. 272.
      See further, monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       Cecil v. Juxon, 1 Atk. 278.
    
    
      
       1 Bac. Abr. 482, Powell v. Hankey, 2 P. Wms. 82; Thomas v. Bennett, id. 341; Fowler v. Fowler, 3 P. Wms. 355; Lord Townsend v. Wyndham, 2 Vez. 7; Peacock v. Monk, id. 190.
    
   Friday, October 11th. The President pronounced the court’s opinion, that the decrees of both courts be reversed, with costs against the appellant; the decree of the county court having been erroneous in limiting the recovery of the sum decreed to the goods and chattels of the testator in her hands to be administered ; and, therefore, the appellees being the party substantially prevailing in this court: and it was decreed and ordered that the appellant pay to the appellees 4001 Is. lOd. with lawful interest thereon from the 16th day of March, 1802, till paid, and the costs by them expended in prosecuting their suit in the said county court.  