US SUPREME COURT DECISIONS

The assent of an executor must be obtained before a legatee can take possession of a legacy. But this assent may be implied, and an assent to the interest of the tenant for life in a chattel inures to vest the interest of the remainder. Therefore, where a bill averred the possession of the subject of the legacy by the life tenant in pursuance of the bequest in the will, and this bill was demurred to, it is sufficient to raise a presumption that the possession was taken with the assent of the executor.

By the laws of Virginia, where there is a tenancy for life in a slave, with remainder to the wife of another person, the interest of the husband in the wife's remainder is placed upon the footing of an interest in a chose in action. If, therefore, he survives the wife, he may reduce the property into possession at the expiration of the life estate, but if he be dead at such expiration, the property survives to the wife, and on her death passes to her legal representative as part of her assets.

Query whether the husband or his personal representative is not bound to administer upon the wife's estate before bringing suit to recover property so situated in the State of Virginia.

Where there was no direct or positive averment that the defendants, or either of them, had any interest in the property claimed or that it was in their possession, no ground of relief against those parties was shown, and the right to a discovery as incidental thereto failed also.

The object of the bill was to reclaim the possession of certain slaves and to compel an account and compensation for the value of certain other slaves, all of which were alleged to be the property of the complainant and appellant, in his character of administrator.

The facts were these:

In 1797, one Elizabeth Edwards, an inhabitant of Northumberland County and State of Virginia, by her last will and testament, bequeathed to her daughter, Sarah Nutt, a certain negro girl named Lavinia, a slave for life, with her future increase, for and during the life of said Sarah Nutt, and at her death to Elizabeth Fauntleroy Nutt, the granddaughter of the testatrix.

In the same year, viz., 1797, the testatrix died, and in June, 1797, the will was duly proved at the court of monthly session, and letters testamentary granted to Griffin Edwards, one of the executors named in the will. chanrobles.com-red

Page 49 U. S. 171

At some period of time after the death of the testatrix, the record did not show when, Sarah Nutt, the daughter, removed the girl Lavinia from the County of Northumberland to Alexandria, in the District of Columbia, and there sold her to one Nicholas F. Blacklock. After such sale, Lavinia had a numerous family of children and grandchildren.

Elizabeth Fauntleroy Nutt, the granddaughter of the testatrix, intermarried with William J. McClanahan, and died, leaving one child, an infant, who survived its mother but a short time. William J. McClanahan also died after his wife and child, but before Sarah Nutt, without having reduced any of the said slaves into his possession. After his death, the complainant administered upon his estate. The order in which the parties died was according to the following numbers:

ELIZABETH EDWARDS (1)

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SARAH NUTT (5)

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WM. J. McCLANAHAN (4)=ELIZABETH FAUNT. NUTT (2)

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DAUGHTER (3)

Sarah Nutt, the last survivor of the five, died in 1840, and after her death Thomas H. McClanahan took out letters of administration upon the personal estate of William J. McClanahan, and also upon the personal estate of Elizabeth F. McClanahan, his wife, both letters being taken out from Northumberland County court in the State of Virginia.

In April, 1845, the administrator filed his bill against all the representatives of Nicholas F. Blacklock, who was dead, and also against all those persons who were alleged to have purchased any of the slaves. The bill recited the above facts and averred that

"after the decease of the tenant for life, the rightful ownership of the slaves passed to William J. McClanahan, notwithstanding he never had the slaves aforesaid in his possession, by virtue of his intermarriage with and survivorship of his said wife and infant daughter, and only child, by the said Elizabeth, his aforesaid wife, according to the form and effect of the statute in such case made and provided, entitled 'An act to reduce into one the several acts directing the course of descents,' passed 8 December, 1792. The said life estate having ceased and determined, as your orator avers, on the ___ day of _____, 1840, by the death of the said Sarah Nutt, and that your orator, as the administrator of the said William J. McClanahan, deceased, now has good right and title to sue for the recovery and possession of the said Lavinia, and her children and grandchildren, no right of action having accrued until after the death of the said Sarah Nutt. "

Page 49 U. S. 172

The bill then prayed for a discovery of the number of slaves, in whose possession they were, and for an account of the value of their services &c.

In October, 1845, the defendants filed the following demurrer to the bill:

"These defendants, respectfully, by protestation, not confessing or acknowledging all or any of the matters and things in the said complainant's bill to be true, in such manner as the same are therein set forth and alleged, do demur thereto, and for cause of demurrer show:"

"1st. That the said complainant hath not, in and by said bill, made or stated such a case as doth or ought to entitle him to any such discovery or relief as is sought and prayed for, from and against these defendants."

"2d. That the said complainant hath not, as appears by his said bill, made out any title to the relief thereby prayed."

"3d. That the said complainant, by his own showing in said bill, is not entitled to the discovery and relief therein prayed, but is barred therefrom by lapse of time, and the statute of limitation, in such cases made and provided. Wherefore, and for divers other errors and imperfections, these defendants humbly demand the judgment of this Honorable Court whether they shall be compelled to make any further or other answer to the said bill, or any of the matters and things therein contained, and pray hence to be dismissed with their reasonable costs in this behalf expended."

"FRANCIS L. SMITH, Solicitor for Defendants"

In May, 1846, the cause came up for argument, when the court sustained the demurrer and dismissed the bill.

The complainant appealed to this Court. chanrobles.com-red

Page 49 U. S. 177