Lark v. Linstead

Le Grand, C. J., delivered the opinion of the court. It appears from the proceedings in this case, that the complainants arc the children of Greenbury Lark, who died in 1826, leaving a will duly executed, which was admitted to probate on the 20th December 1826. By his will he bequeathed all his property to his wife for life, and after his death to be equally divided among his children, share and ⁴²⁶ share alike. His wife was appointed his executrix, arid as such returned an inventory in March 1827, and subsequently passed two accounts in the orphans court, the last of which— designated as an additional final account—was passed on the 17th June 1829.

In November following, a slave boy, part of the property left by Lark and bequeathed by his will, was sold by the widow to the defendant, Linstead, for the sum of $35, the boy being at the time five years of age. The bill alleges, that the estate had been settled, all debts paid, and that Mrs. Lark retained possession of the residue of the property unsold at the time of the settlement of the estate, in her right as tenant for life, under the will of her husband, and being so possessed sold some interest to the appellee, Linstead, but the extent thereof unknown to the complainants, but not exceeding her life. The bill further avers the death of Mrs. Lark, the tenant for life, and claims that the complainant’s interest in remainder had vested. The bill prays decree for sale for purpose of distribution, and an account of the value from the death of Mrs. Lark to the period of the sale.

It also appears, that the defendant Heath had married a daughter of the testator, after his death, but before the death of Mrs. Lark, and the question is submitted, whether he has any interest? The defendant, Linstead, admits the truth of most of the facts set forth in the bill, but in reply to one of its interrogatories,, avers, that he purchased the boy for life, and adds, Mrs. Lark told him at the time of the sale, it was made to enable her to pay the debts of the estate. There is, however, no proof in the cause, that at the time the sale of the boy was made, there were any debts of the estate unpaid. The above is a sufficiently full statement of the facts of the case to present the question which this court is called upon to decide, to wit: What interest in the boy did the respondent, Linstead acquire by his purchase?.

We do not regard ourselves called upon- to contest the principle asserted by the counsel for the- appellees, that an executor, as such, has the right to dispose of the property of his testator. This general right has heretofore been fully discuss ⁴²⁷ •ed by the Court of Apeals, in the case of Allender, Adm’r, vs. Riston, 2 Gill and John., 86, and vre therefore deem it useless .to recapitulate what was then established. We observe, however, that since the act of 1843, ch. 304, the general right has been somewhat abridged in this State; thp.t act, however, has no application to the case now before us. The time which elapsed from the death of the testator, and taking out letters testamentary, in the absence of all proof to the contrary, is sufficient to raise the presumption that the widow had settled the estate of her husband, paid all its debts, and held and sold the boy, as legatee, and not as executrix.

In the case of Gardner and Hughes, Ex’rs, vs. Simmes, 1 Gill, 428 , the court says: “This presumption rests upon the ground that it was the duty of the