11 Gratt. 9 | Va. | 1854
I do not think that the exception to the deposition of Martha T. Frazer was well taken. The fact that she was one of the administrators of her father’s estate did not, of itself, render her incompetent to testify to the assent of herself and of her coadministrator to the legacy in respect to a portion of which the suit was brought.
In the case of Smith & wife v. Townes’ adm’r, 4 Munf. 191, which was an action of detinue brought by a legatee against a stranger, for the purpose of recovering a slave bequeathed to the legatee, this court held that it was competent for the plaintiff to prove by the executor,
The decision of the suit could therefore neither increase nor diminish her liabilities, let it eventuate as it might, and she stood indifferent between the parties.
She states that in 1829 the slaves belonging to her father’s estate were divided between her and her brother; and that, in the division, the slave Eliza was (with others) allotted to her brother Herbert Reese. That the division was made by consent of parties, and that she and her brother each took possession of the slaves allotted to them respectively. In Drayton v. Drayton, 1 Desau. R. 557, executors who were residuary legatees divided the estate of their testator be
The division of the slaves in 1829 operated then, as I conceive, as an assent by the administrators to the executory limitation in favor of Frederick R. Frazer; and I do not see how his title could be divested by sale under an execution issued, whether against the goods and chattels of Herbert Reese, or against the goods and chattels of the testator Frederick Reese.
It is argued that it is competent for an executor under certain circumstances to retract his assent to a legacy: And that Herbert Reese, by representing to the sheriff when he made the levy, that the slave belonged to his father’s estate, and by suffering her to be sold as such, must be taken to have retracted his assent, so far as this slave is concerned, and to have consented that she should be sold as the property of the estate. In a suit brought by Herbert Reese to recover this slave, such an argument would be entitled to much consideration, if indeed it would not be conclusive against his right to recover. To- permit him to recover from a bona fide purchaser under such circum
The counsel for the appellees, whilst he objected here to the jurisdiction, did not seem to lay much stress on the objection, his main argument being directed to the question of title ; and all objection to the want of power in the chancellor to act on the case made, is, I think, met and answered • by the decision of this court in the case of Chisholm v. Starke, 3 Call 25. In that case, the testator bequeathed his slaves to his wife, remainder to her children. The wife married again, and the second husband sold one of the slaves to a Iona fide purchaser, who had no notice of the right of those in remainder; and he, before receiving such notice, sold the slave to another person. The bill filed by the remaindermen in that case did not allege any purpose on the part of Chisholm to remove the slaves out of the state. It simply alleged that Richardson the second husband had frequently endeavored to sell the slaves as his absolute property; that he had sold one of them to Chisholm, who lived at a distance in the state; that he had 'attempted to sell others; and pretended that the, increase of the
I think that the Circuit court erred in dismissing the bill; and that it ought, instead thereof, to have made a decree defining the rights of the appellant in accordance with the foregoing views ; and' to have made such orders as were necessary to insure the forthcoming of the property on the happening of the contingency provided for in the bilk
The other judges’ concurred in the opinion of Daniel, J.
The decree was as follows .-
It appears-to the court that in February 1829 the slaves of the testator Frederick Reese were, by consent of the parties, divided between the appellees Herbert Reese and Martha T. Frazer; and that in the division the female slave Eliza was allotted to the said Herbert Reese. And the court is of opinion that said division operated as an assent by the administrators to the bequests in the will, as well in favor of Frederick R. Frazer as of the said Herbert Reese and Martha T. Frazer; and that the facts alleged in the