
    *Livesay v. Helms & als.
    July Term, 1858,
    Lewisburg.
    (Absent Awuor, P.)
    1. Husband and Wile -Legacy to Wife — Prcsumptiott of Executor's Assent — Case at Bar.  — Aslave having been lent to a husband and wife on their marriage, by the wife’s lather, he by his will gives the slave and her increase to his daughter for life, with remainder to her children. The husband having- died a few months after the fa til er. leaving his wife surviving him: in the absence of all proof, the court will not presume the as sent of the father’s executors to the legacy, so as to vest the life estate of the wife in the husband; but it will be held to survive to the wi fe.
    2. Administrators— Statute of Limitations-Case at Bar. — A widow qualifies as administratrix of her husband, and takes possession of and holds certain slaves, in which she claims a life estate, as having been given to her by her father's will. She is afterwards removed from her office of ad-ministratrix; but she continues to hold the slaves, claiming-them as her own for life; and she holds them for more than, live years after she ceased to be administratrix. Held: The statute, of limitations will protect her against any claim by the administrator ue bonis non and next of kin of her husband. And the fact that one of the next of kin had been a married woman during the whole period, will not prevent the running of the statute against her.
    This was a bill filed in the Circuit court of Lloyd county, by John Helms and Sarah his wife who was Sarah Livesay, against Susannah Livesay and others, the object of which was to recover certain slaves held and claimed by Susannah Livesay; but which the plaintiffs insisted were a part of the estate of her deceased husband Defer Eivesay. The court below held that the slaves did belong: to the estate of Peter Eivesay, and directed them to be delivered to. his administrator de bonis non; and ordered an account of their hires and profits whilst in the possession of Susannah
    *Eivesay. And from this decree she obtained an appeal to this court. The facts are stated in the opinion of Judge Samuels.
    Baldwin, for the appellant.
    Staples and B. Johnston, for the appellees.
    
      
      Legacies — A sscut oí Executor — Presumption.—In Min. Inst. (2d Ed.) 617. it is said: “Assent (of ail executor) maybe sometimes presumed from the time which has elapsed since the debts were paid, or from acquiescence in the possession of the subject of the bequest by the leñatee. (2 Lom. Ex. 235; Lowry v. Mountjoy, 6 Call 59.) And, on the other hand, presumption of assent may also be repelled by circumstances which render it improbable. (Liresay v. Helms, 14 Gratt. 443-44.)"
      
      Husband and Wife -Chattels of Wife-Transfer to Husband. — Mr. Minor (1 Min. Inst. [4th Ed.] 325) says that the absolute transfer of the wife’s chattels to the husband by the marriage is not always viewed with a favorable eye, when, after his death, a conflict arises between the surviving wife on one side and the husband's personal representatives on the other, citing, in support of the proposition, the principal case; Wallace v. Taliaferro, 2 Call 447; Gregory v. Marks, 1 Rand. 355; Taylor v. Yarbrough, 13 Gratt. 193.
      See generally, monographic raoic on “Husband and Wife."
    
    
      
       Equity-Limitation of Actions. — In Etting v. Marx, 4 Fed. Rep. 679, it was said: “There are three classes of cases with reference to the bar of time --first, those in which equity is bound to apply the statutes of limitations; second,, those in which it merely acts In analogy to those slatutes; and. third, those in which it is neither bound by nor acts upon the principle of analogy to ttiem, hut proceeds on doctrines peculiar to and inherent in itself.” The principal case is cited as an instance of the first class.
      The principal case was distinguished in Rowe v. Bentley, 29 Gratt 762, the court saying that, in the principal case, no fraud, collusion, or other thing (as in the case at bar) was shown to deprive the plea of the act of limitations of any part of its efficacy; hut that if such proof had heen made, the decision must have heen different.
      See generally, monographic note on “Executors and Administrators.” |
    
   SAMUELS, J.

This cause is brought here by appeal from a decree of the Circuit court of Eloyd county, in a suit wherein John Helms and wife (in right of the wife) were complainants, and Susannah Eivesay and others were defendants, brought for an account and distribution of Peter Eivesay’s estate; he being dead intestate, and the parties being his next of kin and his administrator de bonis non. The principal subject of controversy was the issue of a slave named Julia. On behalf of the administrator de bonis non, and the next of kin other than Susannah Eivesay the widow, it was insisted that the slave Julia had been given to Peter Eivesay by John McGehee about the year 1800, on Eive-say’s marriage with the defendant Susan-nah, the daughter of McGehee. That on Eivesay’s death in 1828, his widow and son George W'. Livesay were appointed admin-istratrix and administrator of ■ his estate, and as such took into their possession the slaves in controversy. That they had failed to make distribution or to account for hires; and that the appellant had appropriated to herself exclusively the services of the slaves.

The defendant Susannah Eivesay denied the alleged gift by her father John Mc-Gehee. She averred that the slave was only loaned to her husband and herself by her father, on their promise to return her if required to do so. That her father (who died a few months before the death of Eive-say), by his last will and testament, a copy of which is filed as an exhibit, bequeathed Julia and her increase to her for life, with ^remainder to her children. That immediately after the death of her husband she took the slaves into her own exclusive possession, claiming them as her own for life, under the will of her father. That her co-administrator George W. Livesay, who attended exclusively to the administration of the estate, acquiesced in her claim of title and possession. That her possession and claim of title continued from Livesay’s death in 1828 until the month of August 1834, when the grant of administration to herself and George W. Eivesay was duly revoked, and John Helms (one of the complainants) was on the same day appointed administrator de bonis non of Peter Eivesaj^’s estate. That her possession was not interrupted by the revocation of her powers; but continued as before until the bringing of this suit in _ 1848. She relies upon the statute of limitations as a bar to the relief sought.

On behalf of the complainants it is alleged in an amended bill, that the female complainant was a married woman at the time her rights accrued, and has so continued ever since; and that thus her rights were within the saving of the statute of limitations.

The case turns upon the questions whether Peter Eivesay had any property in the slaves either absolute or for the life of his wife. If he had such property, then whether the claims of his administrator de bonis non and of his next of kin are barred by the statute of limitations.

The evidence is not very clear to show whether Eivesay had the absolute right of property in the subject of controversy. It seems, however, that the weight of direct testimony is against such right. In regard to the estate for life of his wife, it must be said, that he could have no such right without the assent of McGehee’s executors to the bequest to Mrs. Eivesay; and it is not shown, by direct proof, that such assent was given; nor can it be presumed from *the short interval of time between McGehee’s death and the death of Eivesay. The long continued and exclusive possession of Mrs. Eivesay, apart irom any effect under the statute of limitations, affords a strong presumption of right to the subject in her. Some of the parties now claiming against her were sui juris, and their acquiescence and that of his co-administrator, should be construed into an acknowledgment of her right.

It remains to consider whether the appellant is protected by the statute of limitations, if the slaves belonged to the estate of her intestate. After her removal from the office as administratrix, and after the . appointment of John Helms to the office of administrator de bonis non, her relations to the estate itself and to the next of kin, were greatly changed. She was no longer a trustee having title to and holding the unadministered assets in trust for the next of kin : the title, by operation of law, was vested in the administrator de bonis non. See Wernick v. McMurdo, 5 Rand. 51. He might, by action of detinue, have recovered of her the slaves, and damages for detention. The next of kin could bring no available suit in equity against her without having the administrator de bonis non before the court. Samuel v. Marshall, 3 Leigh 567; 2 Lomax Ex’ors 514. In him was vested the legal title which a court of equity, on showing a proper case, would cause to be conveyed to those having the right. The next of kin could bring no suit at law against a party holding assets of the estate; their right and remedy' is through the personal representative. See authorities above cited. The possession of Mrs. Rivesay from 1834 to 1848, was adverse to the administrator de bonis non, and was of .sufficient length of time to bar his action against her. No fraud, collusion or other thing is shown to deprive her plea of the statute of limitations of any part of its efficacy. *The coverture of the female complainant, if proved, would not avail to prevent the operation of the plea in this case, seeing that her rights are represented by the administrator de bonis non, and by her husband, who are sui juris and barred by the statute.

It is not necessary for any purpose in this case to consider whether the possession of Mrs. Rivesay, during her continuance in office, adverse in fact, was also adverse in law so as to bar the next of kin.

On the whole case, I am of opinion, that Peter Ivivesay had no title at all to the slaves in controversy. And if this fact were otherwise, I am further of opinion, that any right derived from Ivivesay' is barred by the statute of limitations; and thus there was no cause of action existing against Susannah Ivivesay at the time this suit was brought. I am of opinion to reverse the decree of the Circuit court, so far as it directs the surrender of the slaves, and an account of their hires, and to dismiss so much of the bill as prays for the slaves and their hires, but without prejudice to the right of any party to his or her rights in remainder to the slaves after the death of Mrs. Ivivesay, and to remand the cause for further proceedings as to other subjects passed on by the decrees.

DANIEvIv and Mv®, Js., concurred in the opinion of Samuels, J.

MONCURE, J., concurred in the results, on the first ground stated in the opinion.

The decree is as follows:

The court is of opinion, for reasons stated in writing, and filed with the record, that said decrees are erroneous in so far as they adjudge the question of title to the slaves in controversy against the appellant, and direct a surrender of said slaves, and an account of *their hires. It is therefore adjudged, ordered and decreed, that said decrees, so far as they are herein declared to be erroneous, be reversed and annulled; and that the appellee John Helms, administrator de bonis non of Peter Ivivesay deceased, out of the assets in his hands to be administered, and the other appellees, out of their own proper estates, do pay to the appellant her costs in this court expended. And the court, proceeding to render such decree as the Circuit court should have rendered, instead of so much of said decrees as is herein declared to be erroneous, it is further decreed and ordered, that so much of the original and amended bills as seeks to recover the slaves, Julia and her increase, and hires of the slaves, be dismissed; but without pirejudice to the rights in remainder after the death of the life tenant. And the court being of opinion there is no other error in said decrees, it is further adjudged, ordered and decreed, that the residue thereof be affirmed, and the cause remanded for further proceedings to be had therein in conformity with this decree. _  