Bishop’s Ex’or v. Bishop and Others.
February, 1831.
(Absent Coalter, J.)
Chancery Jurisdiction — Suit by Executor to Restrain Legatee for Life from Carrying Legacy Out of State. — Testator bequeaths slaves to his son G. for life, remainder to G.’s children; the executor, being apprehensive that G. will sell the slaves to persons who will carry them out of the state, applies to court of chancery to restrain G. from so doing, and to compel him to give security, that the property shall be forthcoming at his death for the legatees in remainder; the executor alleging that he had never assented to the legacy, and the legatee for life alleging that he had assented thereto: Hnim, if the executor had not assented to the legacy, he had plain remedy at law to recover the subject; if he had assented to it to the legatee for life, that assent enured to beneiltof legatees in remainder, and though they might, the executor could not, ask the aid of the court to secure the subject to the legatees in remainder,
Rdward Niblett executor of James Bishop of the county of Prince George deceased, exhibited a bill against George Bishop, John Avery and Thomas Comer, in the superiour court of chancery of Richmond, setting forth, that his testator James Bishop, having in his lifetime lent his son, the defendant George Bishop, three slaves, Edy, Jenney and Peter, afterwards, by his will bequeathed them to the son George, for life, and the remainder after his death to his children, and “that they should not be sold, or go out of the "'family;” that the executor had never assented to this legacy, though as the slaves were in possession of George Bishop, the legatee for life, at the time of the testator’s death, under tne previous loan, he had allowed him to retain the possession ; that George Bishop had sold the woman Rdy to the defendants Avery and Comer, who were dealers in slaves, and purposed to send them out of Virginia; and the executor had reason to apprehend, that he would sell the other two slaves to dealers in slaves, who would send them also out of the state; and thus the legatees in remainder would be disappointed of the benefit of the legacy: therefore, the bill prayed injunctions to restrain the defendants Avery and Comer from removing the woman Rdy from Virginia, and to restrain George Bishop from selling the other two slaves; and that the defendants, respectively, might be compelled to give bond with surety to have the slaves forthcoming at the death of George Bishop, for the legatees in remainder; and general relief.
Injunctions -were awarded according to the prayer of the bill, to restrain the defendants, respectively, from making any disposition of the slaves till farther order, unless they should give bond with surety to have them forthcoming to abide the final decree; and if they failed to give such security, the sheriff of Prince George was directed to take possession of the slaves, and hire them out, and to hold them, and the profits, subject to the future order of the court. The defendants failed to give the security, and the sheriff took possession of the two slaves Jenny and Peter, and hired *404them out according- to the ordei;, The slave Edy could not be found.
The defendants Avery and Comer, answered, that they had not purchased the woman Edy of George Bishop.
George Bishop, in his answer stated, that he had sold Edy to one Pearson, a citizen and resident of Virginia, and intended to vest the proceeds in the purchase of another slave to be substituted in her place. He acknowledged, that he claimed and held Edy under the will of his father, and so *had only a life estate in her; and he said, she was delivered to him, after his father’s death, by the executor. But, as to the other two slaves, Jenny and Peter, he alleged, that his father had, in his lifetime, given and delivered them to him, in absolute property; and he claimed them under that gift, and not under the bequest in his father’s will.
The will of James Bishop was exhibited, containing the bequest of the slaves in question, as stated in the bill.
Upon the questions of fact, Whether the testator James Bishop had, in his lifetime, made an absolute gift to his son George of the slaves Jenny and Peter, or had only put them into his possession upon loan? Whether the executor had ever given his assent to the legacy? Whether Avery and Comer had not purchased the woman Edy of George Bishop, and removed her from the neighbourhood? there were many depositions taken and filed by both parties; the evidence adduced by the one conflicting with that of the other.
The chancellor was of opinion, that the plaintiff’s case was fully proved; and he decreed, that the defendants Avery and Comer should deliver the woman Edy to the plaintiff as executor of the testator James Bishop, or if they failed to do so, should pay him her value, unless the defendant Bishop should pay the same to him ; and that the executor not having assented to the legacy, still held the legal title of the other two slaves Jenny and Peter: and, an account of the profits of these two slaves since the commencement of the suit, having been reported to the court, he directed the amount thereof, 101 dollars, to be paid to the plaintiff.
The defendants Bishop and Avery appealed to this court.
Spooner, for the appellants,
maintained, that, whatever might be the true state of the facts, taking the case upon the executor’s own shewing, his bill ought to have been dismissed: for, if the executor had not assented to the legacy, he had a plain remedy at law, by detinue or trover, to recover the slaves, or their value, of George Bishop, or of any person claiming by purchase from him: and, if he had ^assented to the legacy, though the legatees in remainder might have asked security to have the subject forthcoming after the death of the legatee for life, the executor, having no longer any right whatever in the property, had no pretence to claim the interference of the court.
Allison, for the appellee,
referring to the evidence to prove, that the executor had never, in fact, assented to the legacy, and that there was real reason to apprehend that the legatee for life would sell the slaves in question, to dealers in slaves, who would remove them out of the state; insisted, that the executor’s resort to the court of chancery was proper and necessary, to prevent the-eloigning of these specific slaves, which his. testator had expressly desired should not be sold, or go out of the family; an object-, which the powers of the court of chancery alone could accomplish; since, in trover, he could only recover the value, and in detinue also, he might, in the event, recover only the alternative value. And the chancellor having entertained the case for this-purpose, most properly proceeded to do complete justice.
This was the point on which the cause turned, though the question of right to the property was discussed at the bar.
GREEN, J.,
delivered the opinion of the court. The court of chancery had no jurisdiction to entertain this suit, in any possible view of the case. Either the executor had assented to the legacy, and delivered the slaves in question to the appellee George Bishop, as legatee for life, or he had not assented to it, and only left them in his" hands, as a loan or accommodation. If he had assented to the legacy in respect to the legatee for life, that enured as an assent to the legacy to the legatees in remainder after his death. And from that moment, he had no interest in the slaves legal or equitable, and could maintain no suit, either at law or in equity, - in respect to the property, or any disposition of it. No one but the legatees in remainder had qn interest in the *remainder, that would entitle him to demand security for their enjoyment of that right when it should accrue. If, on the other hand, the executor had not assented to the legacy, he had a clear legal title to the slaves, if they belonged to his testator’s estate, which he could have asserted at law as effectually as in equity. And as his testator’s title to two of them was disputed, a court of law was the only proper forum in which the title could be investigated. In like manner, ás to the slave sold, the legatees in remainder were entitled, if the executor had assented to the legacy, to sue all those who had participated in the act of eloigning the slave, for damages at law, but not in equity. Yet the chancellor has entertained this suit in the name of the executor alone, determined the title of the two slaves in controversy as in an action of detinue, proceeded to ascertain the damages against the defendants concerned in eloigning one of the slaves, and seized the other two, and condemned their profits to make good those damages, in favour of the executor. All this is beyond the proper province of a court of equity.
The decree is to be reversed, and the bill dismissed, with costs.