
    
      Burchard and Wife v. Wright &c.
    November, 1840,
    Richmond.
    Executors and Administrators- — Legacies—Assent— Proof — Case at Bar. — A testator having a leasehold estate producing a yearly rent, bequeaths to his father $50 per annum during his life, to be paid out of the rent, and to his wife one half, and to his daughter the other half, of the rent remaining after paying the legacy to his father. The wife is appointed executrix, and qualifies as such. Afterwards she sells the leasehold estate, and makes a deed in her individual name (not calling herself executrix) transferring to the purchaser all her right, title, interest and property in the premises. On a bill by the daughter against the purchaser, Held, the execution of the deed by the executrix in her individual name does not prove that the act was done in the character of legatee, and she must be considered as holding as executrix at the time of the deed, unless there be evidence establishing that she had previously taken as legatee. Accord. Doe. e. d. Hayes v. Sturges, 7 Taunt. 317, 2 Eng. Com. Law Rep. 77.
    Same — Same—Same—Same.—It appears, that before the deed to the purchaser, a payment had been made to the father on account of his legacy, and areceipt given, stating that the money paid “was passed to the credit of mrs. L. W. executrix of D. W. deceased Held, such payment does notshew an assent by the executrix to her own or the daughter's legacy.
    On the first of August 1804 a lease was made from Stephen Wright to Dudley Wood-worth of a lot in Norfolk borough, for seven years, at a yearly rent of 300 dollars. Wood-worth covenanted to put on the lot a brick house, of a particular description, specified in the lease. And it was agreed that at the expiration of the seven years, Wright should have the liberty of taking the buildings at a fair valuation, to be made in the following manner : Wright having given Woodworth or his representatives sixty days notice previous to the end of the lease, each party was to choose one person, and those two another, and the three together two others, making five persons in the whole, who were to fix a ■value on the buildings ; payment to be made to Woodworth *or his representatives at such valuation, in three instal-ments of two, four and six months, and thus the lease to end : but in case Wright should think proper to continue the lease for the further term of seven years, he had a right to do so, on the same terms and conditions specified for the first seven years. At the expiration of the fourteen years, Wright might still continue the lease for successive terms of seven years.
    On the 17th of May 1806 Dudley Wood-worth made his will, whereby, after bequeathing to his wife Lucretia Woodworth his household furniture, to his sister in law Elizabeth Nestle 100 dollars, and to his sister Clarissa Roath 100 dollars, he then bequeathed as follows : “ Item, I give and ■bequeath unto my respected father Jasper Woodworth SO dollars per annum, to be paid out of the rent arising' from the brick house which I hold on a piece of land leased of Stephen Wright, during the term of his natural life and no longer. Item, I give and bequeath unto my beloved wife Bucre-tia Woodworth one half of the rent arising from the brick house which I hold on a piece of land leased of Stephen Wright, after deducting and paying the legacy to my father Jasper Woodworth, during her natural life and no longer. Item, I gave and bequeath unto my daughter Harriet Woodworth one half remaining of the rent arising from the brick house which I hold on a piece of land leased of Stephen Wright, after deducting and paying the legacy to my father Jasper Woodworth, to her and her heirs ; and in case of her death, it is my will and desire that the whole shall go to my wife Bucretia Woodworth after the above-mentioned legacy to my father is paid.” After a further devise and bequest to his daughter, the testator desired that all the residue of his property should be sold for the piyment of his debts ; and what might remain of the proceeds after paying his debts, he gave to his wife. The will was admitted to record on the 28th of July 1806, and Bucretia Wood-worth qualified as executrix.
    *On the 15th of March 1810, a deed was made from Bucretia Woodworth (by her individual name, not calling herself executrix) to John Bonnaud, assigning and transferring to Bonnaud, for the consideration of 6000 dollars, all her right, title, interest and property in the leased premises. Bonnaud gave a deed of trust to Peter Nestle as trustee, to secure to Bucretia Woodworth 5000 dollars of the purchase money. It was made for her benfit, by her individual name.
    A valuation of the buildings was made the 27th of June 1811. It amounted to 5642 dollars. Wright, on the first of August 1811, paid that sum to Bonnaud, and Bonnaud on the same day conveyed the buildings to Wright, who from that time had possession.
    At the time of the death of Dudley Wood-worth, his daughter Harriet was from three to five years old. Peter Nestle was the father of Bucretia Woodworth, and the grandfather of Harriet. Nestle qualified as guardian of Harriet in December 1811, and died two or three years after the last war. Bucretia Woodworth married Francis Wright about the year 1814 or 1815, and removed to the city of Washington in 1816 or 1817. They carried Harriet Woodworth with them to that city, and she was not in Virginia afterwards.
    Harriet having married Jabez Burchard, Burchard and wife, on the 18th of January 1832, filed their bill in chancery, to obtain the benefit of the provision which the testator intended for his daughter by the clauses of the will above recited. Bucretia Wright, in her own right and as executrix of Dudley Woodworth, John Bonnaud, Stephen Wright and Jasper Woodworth were made defendants. Francis Wright died before the suit was commenced.
    The bill prayed, amongst other things, “ that the said Bucretia, executrix as aforesaid, may be required to assent to the legacy bequeathed to your female complainant aforesaid.” Whereas the bill was obviously framed *upon the idea that the deed to Bonnaud passed the right which Bucre-tia Woodworth had as legatee, and nothing more.
    Bonnaud answered, that his contract with Bucretia Woodworth was in the character of executrix ; that he paid her 1000 dollars in that character on the delivery of possession, and secured the payment of the residue, which he shortly after paid.
    Wright answered, that finding the property in the occupancy of Bonnaud, who appeared by a conveyance from Bucretia Woodworth to have purchased the lease and improvements, he treated with him as the assignee of the lease, paid to him the valuation thereof, and took from him a deed for the same.
    Upon these answers (supposing the allegations of the bill to be sufficient) the question arose whether Bucretia Woodworth had held as legatee, prior to her deed to Bonnaud ?
    On this question, the fact principally relied on was a payment on account of the legacy to Jasper Woodworth, the evidence of which was the following receipt : “ Norfolk, April 29th-1809. Received from capt. Peter Nestle ten barrels of flour, amounting to 77 dollars and 50 cents, and 50 dollars cash ; the whole of which is on account of a legacy due to Jasper Woodworth, and is to be passed to the credit of mrs. Bucretia Woodworth executrix of Dudley Woodworth deceased, the cash being just given by mrs. Bucretia Woodworth for the purposes aforesaid.
    (Signed) Benjamin Ames. “Teste, Frs. Foster,
    Wm. Seymour.”
    The bill charged that the testator died wealthy, owing little or nothing, and the evidence tended to shew that there was no occasion to sell the leasehold estate for the payment of debts. For the 5000 dollars for which Bonnaud had credit, he gave a note, as well as the deed of trust before mentioned, and this note appeared to 'x'have been assigned by mrs. Woodworth to her cousin John P. Dietrick.
    The circuit court of Norfolk borough decreed that the bill of the plaintiffs should be dismissed as to the defendants John Bonnaud and Stephen Wright, and that the plaintiffs should pay them their costs.
    From which decree, on the petition of the plaintiffs, an appeal was allowed.
    Robinson, for the appellants.
    What will amount to an assent to a legacy is treated of in Sheppard’s Touchstone 456, 7, and the passage for which Plowden 540, is there cited as authority is applicable to this case. The doctrine was discussed in this court in Bynch v. Thomas, 3 Beigh 687. But the case most in point is Young v. Holmes, 1 Str. 70. For the legacy to Jasper Woodworth being payable out of the rent, and a charge upon it, the payment of that legacy was. according to the case just cited, an assent to the legacy of the rent to the wife and daughter. The circumstances too support this idea. The bill charges that the testator died wealthy, owing little or nothing. The will shews that for the payment of debts other property was directed to be sold. It is not pretended by the answers that there was any occasion to sell this property for debts ; and the proofs shew that there was none. Moreover, the deed from Bucretia Woodworth is made in her individual name, the deed"of trust from Bo'nnaud is for her benefit in her individual character, and the note secured by that deed was not used by her as executrix in paying creditors, but was transferred by her to a near relation.
    The attorney general, for the appellees, called the attention of the court to the allegations and prayer of the bill, and insisted that the complainants had not taken the ground in the court below, which they now relied upon, and therefore they were precluded by the cases of Gibson v. Randolph, 2 Munf. 310, and Parker v. Carter & others, 4 Munf. 273, from taking that ground here. *He also urged the lapse of 22 years before the suit was brought, as fatal to the claim. And upon the merits, he insisted that the bequest by the testator to his daughter Harriet was not a bequest of the lease itself, but merely of a part of the rent, and that even if the lease was bequeathed, the evidence did not .sufficiently establish an assent to the legacy, and the recourse of the daughter was against the executrix alone.
    Robinson, in reply,
    said, that the act of limitations was not relied on in the pleadings, and the mere delay to sue had no force. Por the daughter was an infant between three and five years old when her father died, and there had been no unreasonable delay since she had knowledge of her rights. He admitted that the bill was rather unskilfully drawn, especially the praying part of it. But he said that as, under the general prayer, relief might be granted if consistent with the case made by the bill, the material enquiry upon the pleadings was, what was the case made by the bill and answers ? He then examined the allegations in the bill, and the statements in the answers, and insisted that the question properly arose, whether or no the legacy was assented to before the deed to Bonnaud.
    
      
      See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   TUCKER, P.

The appellants’ counsel concedes that if, prior to the deed to Bon-naud, the executrix had not assented to the legacy of the term, the decree is right: but he contends that there was proof of that assent, in the payment of the legacy to Jasper Woodworth. I think not. The testator gave to Jasper Woodworth, during his natural life, “ fifty dollars per annum, to be paid out of the rent arising from the brick house.” This was an annuity or money legacy to Jasper Woodworth, chargeable upon the rents. It gave to him no estate in the lease. It did not make him tenant in common with Lucretia and Harriet, or with the former only. Por if it gave him title to any part of the lease, to -what portion had he title ? His legacy was fixed, while the rents * were variable. Hence one year he might have title to an undivided half, or indeed to the whole (if the rent did not exceed SO dollars), and the next year to only one undivided thirtieth, which was the proportion his legacy bore to the whole rent when the testator died. This would be absurd. He must therefore be construed to have a fixed annuity in money, payable out of the rents, and not an undivided part or interest in the term.

Such being the case, I cannot perceive how the payment of his annuity by the executrix can be taken to be an assent or the legacy to Harriet or to herself. His legacy was to be first paid out of the rents, and they were only to receive the residuum. It might therefore very well happen, that there might be enough to pay him, and nothing left for them. The executrix might, without a dev-astavit, pay him, if the residue of the rents would satisfy the debts. She might therefore willingly assent to his legacy, which was to be first paid, but be unwilling to assent to her own or to Harriet’-s legacy, as their portion might be necessary for payment of debts. I am therefore of opinion that, from the payment to Jasper Woodworth, we are not at liberty to infer an assent by the executrix to the legacies to herself and Harriet; and her subsequent sale very strongly fortifies the construction I give of her conduct.

The case of Young v. Holmes, 1 Str. 70, is by no means analogous to this. There the testator devised the term to the executor for life, he paying ^50. to another. This was not £SO. out of the testator’s funds, but £SO. of his own money. He paid it; and when he had thus paid the consideration, who could doubt his intention to take the term to himself ?

The case in Plowden 540, is one replete (as' is usual in that excellent work) with sound principles and good sense; but it is very different from the case at bar. The testator gave the rents and profits of a term to his executrix during his son’s minority, to educate his children, and the remainder to the son when he came of age. *Such at least was the construction given to the will. The executrix did support the children out of the lease, which she could not have done without a devastavit, unless by assenting to the legacy : and having assented to the particular estate to herself, it was taken to be an assent to the remainder to the son, who was obviously the favoured legatee. In this there is certainly no analogy to the case before us.

This view of the case renders it unnecessary to present at large some other considerations which weigh heavily against the appellants. The point on which their counsel now places their case is an afterthought. It is nowhere made in the pleadings, and the defendants have had no opportunity of controverting it. Moreover the great length of time (from 1810 to 1832) which has been suffered to elapse without the assertion of their claim, and the acquiescence in the sale by the executrix, have been well calculated to lull the purchasers into security, and to prejudice them unjustly if the pretensions of the appellant should be sustained. Lastly, although the doctrine is unquestionable, that the assent of the executor to a specific legacy vests the legal title in the legatee (1 Wash. 312 ; 5 Munf. 103, 175), yet I am by no means prepared to say that where the assent of the executor is by no act of notoriety, and the possession remains uninterrupted with him, a sale by him to a purchaser without notice of the assent shall be held void. On the contrary, I incline to think that upon the principle of Edwards v. Harben, 2 T. R. 587 ; Hamilton v. Russel, 1 Cranch 309, and other like cases, the assent should be taken to be void and ineffectual as to purchasers, where there is no change of possession, and the executor continues to exercise acts of ownership and to dispose of the property, without opposition.

On the whole, I have no hesitation in affirming- the decree.

Decree affirmed.  