Walker v. Walker's Distributees

RICE, J. —The bequest of the two slaves Arnold and Hannah, contained in the will of Edwin C. Walker, to his wife during her lifetime, is a specific legacy. Upon the evidence set forth in the record, the court below decided, that she was “ entitled under the will to the possession and services of said two slaves, but as she had permitted them to remain in the service of said estate, of which she was possessed as executrix, and not having signified her assent in any manner [269] to take them as a legatee, she was not entitled to an allowance for their services.” It becomes our duty to inquire whether this decision is correct. We admit, that the assent of an executor is as necessary to a legacy bequeathed to himself, as to a legacy bequeathed to any other person ; but this rests on the principle, that until he has examined the state of the assets, he is incompetent to decide whether they will admit of his taking the thing bequeathed as a legacy, and whether it must not of necessity be applied in satisfaction of debts. —2 Williams on Ex’rs 850. It is as a protection to the executor, that his assent to a legacy is required by law.—Ib. 843, 844. His assent may be either express or implied. When the legacy is to himself, he may not only in positive terms announce his election to take it as a bequest, but such election may also be implied from his language or his conduct. — 2 Williams on Ex’rs 850, 846. Any expression or act of the executor, which shows his concurrence to the thing bequeathed, will amount to an assent.—4 Bacon’s Abr. 112. A small matter will amount to an assent — an assent being but a rightful act; especially where the estate is clearly solvent, and there is no probability that the legacy will be needed to pay the debts of the estate.— 6 Ib. 331. In certain cases, the assent of the executor may be presumed, upon the principle that, in the absence of evidence, the executor shall be taken to have acted in conformity with his duty; as when an executor dies after the debts are paid, but before the legacies are satisfied. So, the assent of an executor may be concluded from the legatee’s possessing himself of the subject bequeathed, and retaining it for some considerable time without complaint by the executor. — 2 Wms. on Ex’rs 848. And so, (we feel safe in adding,) the assent of an executrix to a specific legacy of a life estaté in two slaves to' herself, ought to be presumed, when the facts are, that she is the widow of the testator ; that she did not dissent from the will within the year after its probate, as she might have done, under the act of 1812, (Clay’s Dig. 172-3,) greatly .to her own pecuniary 'advantage; that she promptly qualified as executrix, and for at least three years continued as such to keep the property together (as directed by the will) for the purpose of raising, [270] educating, and benefiting the children of the testator; that in the meantime, by her industry, economy, and skilful management of the estate, she has totally exonerated it from all indebtedness; that in all these matters she acted in good faith ; that after all the debts of the estate were paid as aforesaid, she ceased to be executrix; and that in her account current for a final settlement of her administration, she claimed a credit or allowance for a certain amount for the services rendered to the estate by the two slaves specifically bequeathed to her as aforesaid, since the death of the testator.—Gantt v. Phillips, 23 Ala. 275. From these facts, we feel bound to presume the assent of the executrix to the specific legacy of the said two slaves to herself. It makes no difference, in this case, when that assent was given; for, if not given until after all the debts were paid, nor until the day before she ceased to be executrix, it had relation to the time of the testator’s death, and entitles her to an allowance against the estate for the amount she proved the services of those two slaves to have been worth to the estate since the testator’s death. — 2 Wins. onEx’rs 849,850,8Y6,87Y. The Probate Court erred in refusing this "allowance to the appellant. We now proceed to inquire, whether the Probate Court decided correctly, in refusing to the executrix any credit or allowance for the lawful jail fees set forth in the bill of exceptions, which she paid to the jailor of Macon county to regain the possession of certain slaves of the estate, who had been arrested and lodged as runaway slaves in the jail of said county in August and September, 1852. If the executrix, after ascertaining that these slaves were in jail, had, without some legal excuse, permitted them to remain there, thus increasing the jail fees, and depriving the estate of their services, slie would have been guilty of a violation of her duty. No reason, or excuse, is shown why she should not have taken them out of jail. She could not get them out, without paying the jail fees. Yet the court below has, in effect, decided that, although she did pay the fees, and thereby restored the slaves to the service of the estate, she shall lose the money thus paid for the benefit of the estate. The record shows, that the testator left his estate, much in [271] debt; that lie directed bis property to be kept together until the occurrence of one of several specified events; that neither of the events thus specified has yet occurred ; that the executrix is the mother of his children; that she has kept the property together, and freed the estate from debt; and that she and her children are the only persons who can possibly lose anything by the abuse of the slaves, or by any other'improper management of the estate. The record also shows, that in 1852, and prior thereto, the executrix had in her employ an overseer who was cruel and severe upon slaves ; that some of the slaves had been severely whipped by him, and several of them had run away in consequence of his cruelty, and been taken up and committed to jail, for which and other jail fees allowance had been made ; that these things had occurred before the particular slaves ran away for whose jail fees a credit or allowance was now claimed by the executrix; and that said overseer made good crops, and continued in the service of the estate until in the fall of 1852, when he was discharged by the executrix on account of his severity to slaves. Such is, in substance, all the evidence relating to the decision now under consideration. An executrix, in this State, has all the rights and powers which she has by the common law, except so far as those rights and powers are abridged or modified by statute.— Woolfork v. Sullivan, 23 Ala. 548. Under such a will as that of the testator in this case, the law allows a large discretion to the executrix, in the management of the estate, and in the selection of overseers. In the exercise of this discretion, she is not to be subjected to liability, if her acts are not unlawful, and are attended with reasonable diligence and good faith.—Hext v. Porcher, 1 Strob. Eq. 170. Whether the executrix acted properly or improperly in employing such an overseer as she did employ, we do not feel called on now to decide; for, if it be conceded that, in employing him, she acted improperly, we all agree that the evidence does not prove that the running away of the particular slaves as to whom the jail fees in question were paid, was the proximate result of her act in employing him. —Jones v. Donnell, 13 Ala. 491; Sedgw. on Dam. 74-5; Vickars v. Wilcocks, 8 East's R. 1; 2 Greenl. Ev. § 256, [272] Without deciding whether there are not other valid legal reasons, which would induce us to hold the action of the court below erroneous, in refusing to the executrix any allowance for the jail fees specially set forth in the bill of exceptions, to-wit, those paid by her in August and September, 1852, it is clear from the single ground above stated, that the Probate Court erred in this refusal. And for the errors in the several rulings above considered, the decree of the Probate Court is reversed, and the cause remanded.