Alston v. Foster, 16 N.C. 337, 1 Dev. Eq. 337 (1829)

June 1829 · Supreme Court of North Carolina

16 N.C. 337, 1 Dev. Eq. 337

Joseph J. Alston ex'r. of Robert Hill, et al. v. Peter Foster, administrator of John Huckaby,

From Franklin.

"Where skives are given by will for life, witn a i’etiiiai¡»¡l;,r over, an assent of the executor to the legacy for life, is an aejeiA to that in re asafadt r.

Yfiicie ?n executor has assented to a specific, letfcy, and after* w;rdo an execution issues against the goods of the testator, in his ¡iamb), a purchaser of that specific kg’icy, ¡it a C3h. rift‘'s sale under that execution, acquires no title.

From Use pleadings ii appeared, fasti o»e Benjamin Hill dies! its the year 1790, bavkg: giver* to his wife Mary Hill, m life estate in sand?; slaves, with a remainder to his ri.i’dms. That the executor of the husband assented ia the legacy to the wife, and put tbs slaves into her pot/vssio», and soon afterwards she Intermarried with the Befemlani’s intestate. Upon the death of the widow of fisc testator which happened is? iha year 2 817, the Plaintiffs who are those ia remainder, or their representative, by this bill sought a discovery of the names of the slaves and their issue, avid a division of them.

The Defendant in his answer, made the, discovery required, and submitted to a division except as to some of the slaves, the ancestor of whom he contended his intestate had purchased in the year 1792, after his marriage with the widow of Benjamin MU. at Sheriff’s sale, under an execution against the goods and chattels of Benjamin Mill in the hands of his executor. The F’aintiffs alleged that the Defendant’s intestate had fraudulently procured this sale to be effected, and by his contrivances, had bought in those slaves at an undervalue. Testimony was taken to this point, but a statement of it is thought to be immaterial.

Badger, for the Plaintiff,

contended, that the assim", of the executor to the legacy of » particular estate to the wife, enured so as to vest the title in those in remainder, and cited Bami ab. Executors & Administrators, L. 2, 3.

Seawell, for the Defendant, submitted the case without argument.

Henderson, Chief-Justice.

— It is unnecessary to examine into the fraud charged upon Euckaby, in affecting the Sheriff’s sale, under which he claims a part of the property. For by it lie certainly acquired no title, be it ever so fair, as the executor of Hill had, before the issuing of the execution under which the sale was made, assented to the legacy to Mill’s widow for life, whom Euckaby afterwards married. The Sheriff therefore was not authorized to sell, the negroes not being the estate of Mill in the hands of the executor. The property therefore remains in the same situation as if there had been no sale, its it is not so very clear, that the .sale was fraudulently procured by Euckaby, he must be allowed the purchase money paid by him.

The Clerk and Master will take an account of the hire of the negroes, and the money paid by Euckaby.

Per Curiam.

— Decree accordingly.