SlMRALL, J. :
In 1861, W. Wilbourn deceased testate, devising hi's property, after the payment of his debts, to his wife, for the use of herself and children. This bequest only applied to the personal estate.; the testator only owning a life estate in real estate, the remainder being in his children. After the testator’s death, his widow, Lelia S. Wilbourn,' and her children, continued to reside upon the plantation. Not until 1866 was the will admitted to probate, and letters of authority to execute it committed to C. C. Wilbourn, who, at the same time, was appointed guardian of the two minor children.
After the death of her husband, Mrs. Wilbourn, with her minor' children, continued upon the plantation in which.her husband had a life estate, and under her direction two or three crops of cotton and other products were made with the slaves which belonged to her husband. Part of the crops thus grown in 1862, 1863, 1864, were sold by the widow, or by her father-in-law, [42]*42for her account and with her consent. In 1866, twenty-one bales of this cotton were sold by C. C. Wilbourn, administrator with the will anlrexed, and charged in his accounts in the probate court.
This suit was brought by Lelia S. Wilbourn, the widow, to recover the value of these twenty-one bales of cotton, which sold for $2,029 net.
The estate was vacant from the death of the testator in 1861, until 1866, when C. C. Wilbourn was appointed administrator with the will annexed. The failure to put the estate in the regular course of administration, for this long period of time, is doubtless attributable to the unsettled condition of the country, brought about by the late war. The omission to do so did not affect the rights of parties as devisees, legatees or creditors; the suspension of the statute of limitations during the time saving the interests of all parties.
The cotton produced after the death of the testator was grown upon lands then the property of the children, but it was made with the labor of the slaves, stock and implements which had belonged to the testator. It is contended by Mrs. Wilbourn that, in these circumstances, being grown under her control and management, it is her property, with which the administrator has no right to intermeddle, and that his sale was a conversion, making him responsible for its value. The bequest tp .Mrs. Wilbourn is as follows: “ I bequeath to my wife Lelia, after a settlement of all just claims against my estate, all my property of every description, except that part deeded by my father to my children,” etc., “to have and hold during widowhood for use of herself and children.” # # * By the terms of the bequest, the residue of property after payment of just debts, was given to the wife and children, or rather to the wife for the use of herself and children. The incumbrance put upon the property was no greater than the dedication which the law made of it for the [43]*43benefit of creditors. Tbe possession and use of the property by Mrs. Wilbourn before the qualification of a legal representative, constituted her executor de son tort, and as such she would be accountable to creditors for so much of it as she appropriated. So also the legal representative might bring her to account for the like purpose. The estate being deeply in debt, proved to be insolvent; Mrs. Wilbourn could not successfully defend either suit on the plea that the property had been bequeathed to her. Her right to the use of the property, or its annual income, is subordinate to the claims of creditors. The will, in accordance with the law, postpones her claim until creditors are satisfied.
The administrator or executor represents the person of the intestate or the testator, in respect to the personal estate; the grant of letters to either hath relation to the time of the intestate’s death. Toller’s Ex’rs, 133. If, therefore, the tort be committed affecting the goods between the death of intestate and the appointment, the executor or administrator may have his action. It was the legal duty of C. C. Wilbourn, as administrator, to reduce in possession all the goods and effects which belonged to the'testator, and to assert claims and obtain redress from all who had intermeddled with the estate. It is plain that Mrs. Wilbourn would be liable to him for the effects which she had used, and also for any income or profits realized by her from the estate. If she controlled the labor of the slaves, and received the profits and income, she might discharge herself by turning over to the administrator the products realized, or she might account for the value of the labor as hire. She could not take possession of the estate which was involved in debt, and employ it to produce income, and refuse to account because of the bequest to herself. In law, she could only enjoy the estate in that right when creditors were satisfied. Her possession was in her own wrong, and she could only discharge herself as she [44]*44could show an appropriation, such as the law would have made. Hardy v. Thomas, 23 Miss. 544. Among the acts which constitute an executor de. son tort are, taking possession of the goods, converting them to her own use, “ seizing a specific legacy without the assent of the lawful executor.” 3 Bac. Abr. 21; Godolph. 91; Toller’s Ex’rs, 37. So would be the buying of goods at sheriff’s sale under a judgment fraudulently confessed to him by the intestate with a view to defeat creditors. Osborne v. Moss, 7 Johns. 161.
The real controversy is between the creditors of the testator and Mrs. Wilbourn, or her children. This is manifested in the contestation in the probate court on the settlement of C. C. Wilbourn’s accounts as guardian (a transcript of which is in evidence in this cause). There Mrs. Wilbourn, the successor of C. C. Wilbourn in the guardianship, excepted to his accounts because he did not charge himself with the proceeds of this cotton as a fund belonging to the wards. The court held that the cotton was assets of the estate of testator, and should be accounted for by C. C. Wilbourn as administrator; but as the cotton was grown upon the land of his wards, he was ordered to charge himself with $500, the value of the rental.
It is true that Mrs. Wilbourn, as argued by her counsel, did not occupy such attitude in that litigation as to conclude her personally. She is not technically estopped from setting up a claim in her own right to the cotton. But she did claim-it on behalf of her wards. That claim manifestly was made upon the idea that it was grown upon their land. The court was of opinion that the just claim of the minor heirs was satisfied by awarding them the rent of the land. Mrs. Wilbourn has no other claim than that the cotton was produced by the slaves which belonged to the estate whilst under her control. Manifestly, the administrator, for the benefit of creditors, has a bettor right to the proceeds of their labor [45]*45than she has as legatee. As we have seen, her possession and appropriation of the property and its income, put her in the attitude of executor de son tort, and, as such, liable to creditors or the administrator. The fact that she was legatee did not, in the circumstances, improve her condition. It might he that the exact measure of her accountability would be the value of the effects consumed and tbe hire of the slaves.
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SlMRALL, J. :
In 1861, W. Wilbourn deceased testate, devising hi's property, after the payment of his debts, to his wife, for the use of herself and children. This bequest only applied to the personal estate.; the testator only owning a life estate in real estate, the remainder being in his children. After the testator’s death, his widow, Lelia S. Wilbourn,' and her children, continued to reside upon the plantation. Not until 1866 was the will admitted to probate, and letters of authority to execute it committed to C. C. Wilbourn, who, at the same time, was appointed guardian of the two minor children.
After the death of her husband, Mrs. Wilbourn, with her minor' children, continued upon the plantation in which.her husband had a life estate, and under her direction two or three crops of cotton and other products were made with the slaves which belonged to her husband. Part of the crops thus grown in 1862, 1863, 1864, were sold by the widow, or by her father-in-law, [42]*42for her account and with her consent. In 1866, twenty-one bales of this cotton were sold by C. C. Wilbourn, administrator with the will anlrexed, and charged in his accounts in the probate court.
This suit was brought by Lelia S. Wilbourn, the widow, to recover the value of these twenty-one bales of cotton, which sold for $2,029 net.
The estate was vacant from the death of the testator in 1861, until 1866, when C. C. Wilbourn was appointed administrator with the will annexed. The failure to put the estate in the regular course of administration, for this long period of time, is doubtless attributable to the unsettled condition of the country, brought about by the late war. The omission to do so did not affect the rights of parties as devisees, legatees or creditors; the suspension of the statute of limitations during the time saving the interests of all parties.
The cotton produced after the death of the testator was grown upon lands then the property of the children, but it was made with the labor of the slaves, stock and implements which had belonged to the testator. It is contended by Mrs. Wilbourn that, in these circumstances, being grown under her control and management, it is her property, with which the administrator has no right to intermeddle, and that his sale was a conversion, making him responsible for its value. The bequest tp .Mrs. Wilbourn is as follows: “ I bequeath to my wife Lelia, after a settlement of all just claims against my estate, all my property of every description, except that part deeded by my father to my children,” etc., “to have and hold during widowhood for use of herself and children.” # # * By the terms of the bequest, the residue of property after payment of just debts, was given to the wife and children, or rather to the wife for the use of herself and children. The incumbrance put upon the property was no greater than the dedication which the law made of it for the [43]*43benefit of creditors. Tbe possession and use of the property by Mrs. Wilbourn before the qualification of a legal representative, constituted her executor de son tort, and as such she would be accountable to creditors for so much of it as she appropriated. So also the legal representative might bring her to account for the like purpose. The estate being deeply in debt, proved to be insolvent; Mrs. Wilbourn could not successfully defend either suit on the plea that the property had been bequeathed to her. Her right to the use of the property, or its annual income, is subordinate to the claims of creditors. The will, in accordance with the law, postpones her claim until creditors are satisfied.
The administrator or executor represents the person of the intestate or the testator, in respect to the personal estate; the grant of letters to either hath relation to the time of the intestate’s death. Toller’s Ex’rs, 133. If, therefore, the tort be committed affecting the goods between the death of intestate and the appointment, the executor or administrator may have his action. It was the legal duty of C. C. Wilbourn, as administrator, to reduce in possession all the goods and effects which belonged to the'testator, and to assert claims and obtain redress from all who had intermeddled with the estate. It is plain that Mrs. Wilbourn would be liable to him for the effects which she had used, and also for any income or profits realized by her from the estate. If she controlled the labor of the slaves, and received the profits and income, she might discharge herself by turning over to the administrator the products realized, or she might account for the value of the labor as hire. She could not take possession of the estate which was involved in debt, and employ it to produce income, and refuse to account because of the bequest to herself. In law, she could only enjoy the estate in that right when creditors were satisfied. Her possession was in her own wrong, and she could only discharge herself as she [44]*44could show an appropriation, such as the law would have made. Hardy v. Thomas, 23 Miss. 544. Among the acts which constitute an executor de. son tort are, taking possession of the goods, converting them to her own use, “ seizing a specific legacy without the assent of the lawful executor.” 3 Bac. Abr. 21; Godolph. 91; Toller’s Ex’rs, 37. So would be the buying of goods at sheriff’s sale under a judgment fraudulently confessed to him by the intestate with a view to defeat creditors. Osborne v. Moss, 7 Johns. 161.
The real controversy is between the creditors of the testator and Mrs. Wilbourn, or her children. This is manifested in the contestation in the probate court on the settlement of C. C. Wilbourn’s accounts as guardian (a transcript of which is in evidence in this cause). There Mrs. Wilbourn, the successor of C. C. Wilbourn in the guardianship, excepted to his accounts because he did not charge himself with the proceeds of this cotton as a fund belonging to the wards. The court held that the cotton was assets of the estate of testator, and should be accounted for by C. C. Wilbourn as administrator; but as the cotton was grown upon the land of his wards, he was ordered to charge himself with $500, the value of the rental.
It is true that Mrs. Wilbourn, as argued by her counsel, did not occupy such attitude in that litigation as to conclude her personally. She is not technically estopped from setting up a claim in her own right to the cotton. But she did claim-it on behalf of her wards. That claim manifestly was made upon the idea that it was grown upon their land. The court was of opinion that the just claim of the minor heirs was satisfied by awarding them the rent of the land. Mrs. Wilbourn has no other claim than that the cotton was produced by the slaves which belonged to the estate whilst under her control. Manifestly, the administrator, for the benefit of creditors, has a bettor right to the proceeds of their labor [45]*45than she has as legatee. As we have seen, her possession and appropriation of the property and its income, put her in the attitude of executor de son tort, and, as such, liable to creditors or the administrator. The fact that she was legatee did not, in the circumstances, improve her condition. It might he that the exact measure of her accountability would be the value of the effects consumed and tbe hire of the slaves. But she had a maintenance out of the estate for several years, sold two or more lots of cotton, was allowed and paid by the administrator provisions and money for a year’s support, and, so far as the record discloses, made no objection to the appraisement of the cotton and its sale by the administrator as assets of the estate. On her motion, the estate was charged with the rent of the land. The labor that produced the cotton did not belong to her. She is accountable to the administrator and creditors, either for the product of that labor or for the rent value of the slaves, stock and implements employed in its production. The administrator, it may be inferred, took charge of the cotton with her consent, or without her dissent; its value may not he in excess or might fall short of what she would owe; as executor de son tort, she is charged with effects consumed in the use, and with hire.
We think the first charge granted for the plaintiff was erroneous. As said by • the court in O’Reily v. Hendricks, 2 S. & M. 327, “ charges (to the jury) must he pertinent to the state of facts before the court.” There should always be a predicate laid in the testimony, and charges should he so framed as not to mislead. The assent of the executor, at common law, was necessary to sever the legacy from the estate and vest title in the legatee. The Code of 1857, art. 118, p. 454, allows the legatee to sue for the legacy in the probate court, after the lapse of twelve months from the grant of letters testamentary; and if there be no debts or an excess [46]*46of assets without it, the court may order its payment; but then a refunding bond may be exacted. Packwood v. Bishop, 43 Miss. 505. The bond from a specific legatee may, however, be dispensed with if it is shown affirmatively that there.were no debts. Magee v. Gregg, 11 S. & M. 70; Magee v. Harrington, 13 S. & M. 403.
The bequest to Mrs. Wilbourn is subject to the debts. As against the executor she cannot acquire a right to reduce it to possession and hold it, until after the expiration of a year from his qualification, and not then, if the estate is in debt, and the thing bequeathed is needed to pay creditors. The principle contained in the charge has application, where the legatee is in possession with the assent of the executor, or where she has recovered the property from the executor; but has no application where the legatee takes possession immediately on the death of the testator, and holds for a time before the will is probated and the executor appointed. As we have seen, if the estate is involved in debt, such possessions and appropriations will be treated as that of executor de son tort. We are of the opinion that on the facts in evidence, which are few and plain, the plaintiff is not entitled to recover.
Wherefore, the judgment is reversed, and a venire de novo awarded.