Houston, Justice,
announced the opinion of the Court. In this case the principal ground of objection presented by the counsel for the appellant to the decree of the Chancellor appeared to be that by the grant of letters of administration
cum testamento annexa
to John H. Bxxrton, on the estate of the testatrix, and the subsequent return of the inventory and the passing and filing of his administration account thereon and charging himself therein with the whole, amount of her personal property contained in. the inventory and appraisement before the Register, her goods and chattels in question were fully administered by by him as her administrator, and were thereby converted to his own use and became
ipso facto
his own goods and chatties
jure proprio,
and that too, from the time of her death, as by construction and operation of law both the
possession of and the property in them was thereby vested in him in his own proper right from that time, hut in reply to which we must say in the first place, that there is nothing we believe to be found in any elementary work on the subject, or in any volume of reports that we are aware of, to sanction or sustain the principle, since the law was directly ruled otherwise in the leading and well considered case of
Farr v. Newman,
4
T. R.
621, and which in the principal feature of it was strickingly analogous to the case now before us, with this essential difference and distinction in two most important particulars, however, that there was no special bequest in trust of the goods in that case, and it was in a court of law, and not in a court of equity. In that case a
ft. fa.
execution against the executor personally, or one who had become the husband of the executrix, was levied upon goods and chattels which were of the testator then in their possession. A considerable time had elapsed after the death of the testator, but the goods in the mean time had continued
in specie,
in the possession of his widow and executrix in the same house in which he had died, and were still there in the possession of the defendant in the house, who had since married her and was then living in it with her; and the main question was whether they were his goods by virtue of his marriage to the executrix, and as such were' liable to be seized on the execution against him personally, or were more properly subject and liable to be levied upon under another
ji. fa.
execution which came to the hands of the sheriff at a later hour the same day, issued at the suit of other parties who had recovered a judgment against the executrix for a debt due from the testator, and which latter execution was against them as his executors and was according to the tenor of it to be levied
de bonis testatoris;
and after twice hearing it argued and after mature consideration of the question, it was decided by
Grose, Ashurst
and
Ld. Kenyon (.Butter
dissenting) that goods of a testator in the hands of his executor cannot be seized in execution of a judgment against the executor in his own right, because they do not
become his goods until he has paid debts of the testator, or assumed liabilities as such executor, to the amount and value of such goods, and that they remain in his hands as executor until that is done by him. And such has been considered the settled law on the subject since that time, and was so said to be, and approved by Ld. Eldon in
McLeod v.
Drummond, 17
Ves.
168. But there is not, and there never was supposed to be, any thing in this ruling that would abridge or impair in the slightest degree, as seemed to be apprehended by the counsel for the appellant in their argument against it, the general right and power of executors or administrators to sell the goods and chattels coming to their hands as such, either at public or private sale to
bona fide
purchasers, or to accept the same at a fair and
bona fide
appraisement, and thereby to convert them and make them their own goods though still retained in their hands
in specie,
by paying all the debts of the testator or intestate, and discharging all the other obligations and liabilities to which they are lawfully subject in the due administration of them; and when that has been done by them, it is neither in the power of a court of law, or a court of equity to question or disturb the right to, or the possession of the purchaser of them, in the one case, or their own right'to, or possession of them as the lawful and absolute owners of them, in the other.
But as a question of law merely, and without contemplating this case as one originating and still in a court of equity, according to the rules of which it can alone be properly considered, can an
administrator cum. testamento annexa,
who has become the administrator of a last will and testa- * ment which directs that after paying the debts and funeral expenses of the testatrix, the balance of her personal property shall be delivered to a particular legatee named in the will for life, and after her death to be divided among her children, be said to have administered her estate, paid all her debts a.nd discharged all the obligations and liabilities to which the goods so bequeathed are lawfully subject in the due administration of them, and which are alike im
posed upon Mm as such administrator, both by the tenor of the will and the condition of his official obligation, when he has done no more than to take out the letters of administration, return his inventory, pay the funeral expenses, there being no debts to satisfy, and passed and filed his administration account before the register therein charging himself as such administrator with the amount of the appraisement thereof and received due credit for such funeral expenses paid by Mm merely ? Could such acts as those which I have just stated, possibly constitute even in law an administration of her estate in a legal sense, or in contemplation of our statutory provisions on the subject, and a lawful conversion of the balance of the goods so bequeathed, so as to make them his own property in own right absolutely ? This simple question I think, is sufficient to show the utter fallacy of such a proposition; for it is as much a part of the due administration of the estate and of the duty of the administrator, to deliver or pay the residue to the legatee, as it was to pay the debts or funeral expenses of the testatrix in such a case, which is recognized and sustained by a decision of all the Judges sitting in the Court of Errors and Appeals of the State, in which the principle has been ruled that all the goods and chattels of the deceased remaining
in specie
in the hands of the executor or administrator until he has closed all the concerns of the testator or intestate, are unadministered goods, and on the death or removal of such executor or administrator, may he sued for and recovered as such by his successor in office.
Burton’s Admr. v. Tunnell et al,
5
Harr.
190.
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Houston, Justice,
announced the opinion of the Court. In this case the principal ground of objection presented by the counsel for the appellant to the decree of the Chancellor appeared to be that by the grant of letters of administration
cum testamento annexa
to John H. Bxxrton, on the estate of the testatrix, and the subsequent return of the inventory and the passing and filing of his administration account thereon and charging himself therein with the whole, amount of her personal property contained in. the inventory and appraisement before the Register, her goods and chattels in question were fully administered by by him as her administrator, and were thereby converted to his own use and became
ipso facto
his own goods and chatties
jure proprio,
and that too, from the time of her death, as by construction and operation of law both the
possession of and the property in them was thereby vested in him in his own proper right from that time, hut in reply to which we must say in the first place, that there is nothing we believe to be found in any elementary work on the subject, or in any volume of reports that we are aware of, to sanction or sustain the principle, since the law was directly ruled otherwise in the leading and well considered case of
Farr v. Newman,
4
T. R.
621, and which in the principal feature of it was strickingly analogous to the case now before us, with this essential difference and distinction in two most important particulars, however, that there was no special bequest in trust of the goods in that case, and it was in a court of law, and not in a court of equity. In that case a
ft. fa.
execution against the executor personally, or one who had become the husband of the executrix, was levied upon goods and chattels which were of the testator then in their possession. A considerable time had elapsed after the death of the testator, but the goods in the mean time had continued
in specie,
in the possession of his widow and executrix in the same house in which he had died, and were still there in the possession of the defendant in the house, who had since married her and was then living in it with her; and the main question was whether they were his goods by virtue of his marriage to the executrix, and as such were' liable to be seized on the execution against him personally, or were more properly subject and liable to be levied upon under another
ji. fa.
execution which came to the hands of the sheriff at a later hour the same day, issued at the suit of other parties who had recovered a judgment against the executrix for a debt due from the testator, and which latter execution was against them as his executors and was according to the tenor of it to be levied
de bonis testatoris;
and after twice hearing it argued and after mature consideration of the question, it was decided by
Grose, Ashurst
and
Ld. Kenyon (.Butter
dissenting) that goods of a testator in the hands of his executor cannot be seized in execution of a judgment against the executor in his own right, because they do not
become his goods until he has paid debts of the testator, or assumed liabilities as such executor, to the amount and value of such goods, and that they remain in his hands as executor until that is done by him. And such has been considered the settled law on the subject since that time, and was so said to be, and approved by Ld. Eldon in
McLeod v.
Drummond, 17
Ves.
168. But there is not, and there never was supposed to be, any thing in this ruling that would abridge or impair in the slightest degree, as seemed to be apprehended by the counsel for the appellant in their argument against it, the general right and power of executors or administrators to sell the goods and chattels coming to their hands as such, either at public or private sale to
bona fide
purchasers, or to accept the same at a fair and
bona fide
appraisement, and thereby to convert them and make them their own goods though still retained in their hands
in specie,
by paying all the debts of the testator or intestate, and discharging all the other obligations and liabilities to which they are lawfully subject in the due administration of them; and when that has been done by them, it is neither in the power of a court of law, or a court of equity to question or disturb the right to, or the possession of the purchaser of them, in the one case, or their own right'to, or possession of them as the lawful and absolute owners of them, in the other.
But as a question of law merely, and without contemplating this case as one originating and still in a court of equity, according to the rules of which it can alone be properly considered, can an
administrator cum. testamento annexa,
who has become the administrator of a last will and testa- * ment which directs that after paying the debts and funeral expenses of the testatrix, the balance of her personal property shall be delivered to a particular legatee named in the will for life, and after her death to be divided among her children, be said to have administered her estate, paid all her debts a.nd discharged all the obligations and liabilities to which the goods so bequeathed are lawfully subject in the due administration of them, and which are alike im
posed upon Mm as such administrator, both by the tenor of the will and the condition of his official obligation, when he has done no more than to take out the letters of administration, return his inventory, pay the funeral expenses, there being no debts to satisfy, and passed and filed his administration account before the register therein charging himself as such administrator with the amount of the appraisement thereof and received due credit for such funeral expenses paid by Mm merely ? Could such acts as those which I have just stated, possibly constitute even in law an administration of her estate in a legal sense, or in contemplation of our statutory provisions on the subject, and a lawful conversion of the balance of the goods so bequeathed, so as to make them his own property in own right absolutely ? This simple question I think, is sufficient to show the utter fallacy of such a proposition; for it is as much a part of the due administration of the estate and of the duty of the administrator, to deliver or pay the residue to the legatee, as it was to pay the debts or funeral expenses of the testatrix in such a case, which is recognized and sustained by a decision of all the Judges sitting in the Court of Errors and Appeals of the State, in which the principle has been ruled that all the goods and chattels of the deceased remaining
in specie
in the hands of the executor or administrator until he has closed all the concerns of the testator or intestate, are unadministered goods, and on the death or removal of such executor or administrator, may he sued for and recovered as such by his successor in office.
Burton’s Admr. v. Tunnell et al,
5
Harr.
190.
But in this case the bequest of the goods and chattels in question, was in express trust to another for the separate use and benefit of a married woman for life and after her death to be divided among her children, and wMch of itself rendered it a special object of the cognizance of the Court of Chancery. But Henry Burton, the son of the testatrix and the trustee appointed in the will, was at the time of her death domiciled in a foreign country, and could not accept the trust created by it. By the will no executor
was nominated, but the goods were in the actual possession of John H. Burton, another son of the executrix, in whose house she died, and in a few days afterward and before the appointment of any administrator on her estate, the appellent, who had previously recovered a judgment in the Superior Court against him, sued out upon it the execution in question against him, and had it levied upon the goods as his property. He, however, soon after took out letters of administration
c. t. a.
upon her estate, and afterward upon his petition to the Chancellor for that purpose, Bobert B. Bobinson was appointed trustee in lieu of Henry Burton, of the bequest in the will and thereupon presented his petition in the Court of Chancery, praying an injunction against the appellant and the administrator of the estate to prohibit any further proceeding and the sale of the goods upon the execution, which was granted and served and the same was stopped. He had at the same term entered into the injunction bond with the other respondents in the present appeal, Peter Bobinson and Zadoc Milby, as his sureties, to file his bill of complaint against the appellant and the administrator within the time usually required in such cases, which he failed to do, whereupon the bond became forfeited and the injunction was dissolved. He nevertheless proceeded afterward to file his bill of complaint for relief in the premises as such trustee, and for a further injunction against them to prohibit the sale of the goods upon the execution, and at the ensuing term of the Superior Court the appellant instituted his action on the injunction bond against the respondents in the appeal, and pending the suit in the Court of Chancery on the bill of complaint, obtained judgment against them in the action on demurrer and by confession, amount to be ascertained by the prothonotary, when by the consent of parties the written agreement was entered into and signed by their respective counsel, to the effect that the amount due on the said execution and costs and the said judgment should in all things await the final decree of the Chancellor in the suit then pending in the Court of Chancery, and that no pro
ceeding should be had or taken upon said judgment until such decree should be made by the Chancellór, and which final decree afterward rendered by him in favor of the complainant in it, ordering the goods in question to be delivered to the trustee, upon payment of the costs in the action upon the injunction bond in the Superior Court, and to the administrator of the testatrix the amount allowed him in his administration account for her funeral expenditures &e. and perpetually enjoining and restraining the appellant from proceeding any further on his execution against him, we now have before us upon this appeal for our revision.
What we have already said before proceeding in our opinion to state more particularly and in chronological order the facts of the case, has, of course, in our judgment disposed of the objection chiefly urged against the propriety of it, upon the ground of the alleged legal conversion and transmutation of the absolute property in the goods from the testatrix at the instant of her death to her administrator in his own right by virtue of the steps afterward taken by him as such administrator with regard to them. And I will therefore only -take occasion now to add that if there could be any reasonable doubt about the true and proper construction of the law and the statute as applicable to the supposed case which was then suggested, there can be none whatever, when it is sought to be applied to a case like this, where the balance of the goods after paying her debts and funeral expenses, are expressly and specifically bequeathed in the wall of the testatrix in trust to one specially appointed to hold them for the separate use and benefit of a married "woman during her life, and after her death to be divided among her children. I do not mean, however, by any term which I have just used, to intimate the opinion that it was a bequest of a specific legacy in trust for such uses. All I mean to say is that for reasons best known to the testatrix, she chose to will and bequeath the balance of her personal property after paying her funeral expenses, (for it seems she left no debts, and her funeral expenses amounted
to $38.40 only, whilst the appraisement of it amounted to $513.72) specifically in trust for the uses and purposes mentioned, and as the seizure and threatened sale of them under the execution of the appellant against the administrator personally, was about to defeat that specific object of the trust, we think that it was not only within the appropriate sphere and province of the Chancellor, but within the appropriate line of his duty in the exercise of his equity jurisdiction in such a case, to take cognizance of it, and thus to protect and preserve the trust created under this specific bequest of the testatrix. And this, we think, disposes also of the objection, so far as his taking cognizance and jurisdiction of the case merely is concerned, that there was no necessity for it, inasmuch as the trustee, after the conversion of the goods to his own use and benefit by a sale of them on the execution of the appellant, would still have had an adequate, ample and even a better remedy for the recovery of the value of them in an action at law upon the bond of the administrator against him and his sureties. For it is enough to say in reply to that objection, that the Chancellor not only had an inherent, original and peculiar jurisdiction in such a case, but he alone could afford the only remedy adequate to the specific performance and execution of the special bequest of the testatrix in the case.
Entertaining these general views in regard both to the law and the equity of the case, we have not thought it necessary to express any opinion upon the question presented with reference to the precise meaning and proper construction of the written agreement signed by the counsel of the parties respectively, and annexed to the record of the judgment recovered by the appellant in the action on the injunction bond in the Superior Court, except to say that we do not think the final decree of the Chancellor in the suit then pending in the Court of Chancery, under all the facts and circumstances disclosed in the case, went further in any respect than it might have gone without any such agreement whatever in that case, and we do not under
stand or consider that there was any thing in it to limit or restrict the complainant from asking for such a decree in the suit then pending before him.
The decree below is therefore affirmed.