In 1833 Daniel Hailes died leaving a will, which was duly proven and Sarah Hailes qualified as executrix.
Under the will Sarah Hailes took an estate for life, with a contingent bequest to Alexander Hailes in the event of his surviving her, but to his children if he died during her lifetime, as is decided in Hailes v. Griffin, 22 N.C. 425. In 1834 Sarah Hailes sold a negro boy (one (478) of the many slaves bequeathed) to one Hart for $550, and executed a bill of sale with a general warranty of title and soundness. Alexander Hailes joined in the bill of sale, which was in the usual form and did not purport to be executed by Sarah Hailes as executrix.
Alexander Hailes died in the lifetime of Sarah, leaving two children, who are the plaintiffs in the original bill which was filed against Hart to compel him to give security for the forthcoming of the slave at the death of Mrs. Hailes. In 1842 Hart sold his right to Ingram, who was made a defendant, and executed a bond for the forthcoming of the slave, under an order made in the cause. In 1844 Mrs. Hailes died, and, the slave not being delivered by Ingram, an action at law was brought on the bond and judgment taken against him. He then filed a cross-bill, alleging that although at the time he bought the slave, and when he executed the bond, he believed he was only entitled to an estate during the life of Sarah Hailes, he had since learned and is advised that the absolute title passed by the sale made by her, as she was the executrix and had a right to sell, and did sell as executrix, for the purpose of paying the debts of her testator, and prays an injunction against the judgment at law. He also obtained leave and filed an answer to the original bill, insisting upon the same grounds.
The plaintiffs in the original bill, in their answer to the cross-bill, deny that Sarah Hailes sold the slave as executrix, but allege that she sold as legatee, and that Alexander Hailes joined with her in making the sale in order to pass his contingent interest as legatee. *Page 335 The only fact in dispute is whether Sarah Hailes (479) made the sale as executrix or as legatee. We are satisfied from the exhibits and proofs that she made the sale as legatee. The bill of sale is executed by her and Alexander Hailes, and does not purport to be executed by her as executrix. The sale was not made in the manner in which sales are usually made by executors and administrators. There is a general warranty of title and soundness. And there is no proof of debts to an amount sufficient to induce an executor to resort to his power to sell slaves. It is not necessary to give the proofs more than this passing notice. It must be declared that the sale was made by Sarah Hailes as legatee.
Taking this to be the fact, yet as she was the executrix and in that capacity had power to sell, so as to pass an absolute estate, the question is presented whether the absolute title did not pass, notwithstanding she sold as legatee, by reason of her power as executrix. It is urged that it should be so held in order to give effect to the deed, under the maxim, "utres magis valeat quam pereat."
It is true, when a deed cannot take effect in the manner intended, effect will be given to it in some other way, if possible, rather than permit it to be wholly inoperative; as if a deed be executed in the form of a release, and the relation of the parties is not such as to give it effect as a release, it will be supported as a bargain and sale or covenant to stand seized, if there be a sufficient consideration. So if an officer arrests under a void process, and yet at the time has a valid one, under which he did not profess to act, the officer is protected, on the ground that he had power to arrest, and the efficacy of the arrest depends, not upon what he says or professes, but upon the power which he has. Meeds v.Carver, 30 N.C. 298. The latent power (if I may use the expression) under the valid process is not inconsistent with the assumed power under the void one.
But in the case under consideration the title and the right to (480) sell as legatee are inconsistent with the power to sell as executrix — the exercise of the one necessarily presupposes the other to be extinguished; for to give the right, as legatee, "an assent" was necessary, and such assent divested the title and the power to sell as executrix, and passed them to the legatee.
It is clear that the act of making sale as legatee is an implied, if not an express, assent. Such assent determined the right of Mrs. Hailes as executrix, by vesting the title in her as legatee. After an assent, the legatee becomes the owner to all intents and purposes. It can make no *Page 336 difference that in this case the executrix and legatee were the same individual. By the assent the title vested in her as legatee, and she ceased to have any power in the capacity of executrix.
The question may be considered in another point of view. If the executrix had not been also legatee, and had sold as an individual, and not in the capacity of executrix, the sale would have been wholly ineffective, and nothing would have passed unless it could, in such case, be supported by the "latent" power to sell as executrix; and it may be effect would be given to it in that way, "ut res magis valeat quam pereat."
But as she was legatee for life, the sale was not wholly inoperative — a life estate passed; and as the deed operated to pass an estate, when made by her as legatee, it would be repugnant to consider it as also taking effect as if made by her as executrix. The same deed cannot operate in two ways. This is illustrated in the instance of estoppels. If the deed passes any estate, although less than the parties intended, it is never allowed to operate as an estoppel. If such was not the law, and a legatee for life should sell, intending to pass only his estate, but using general terms, and happened to be executor, this circumstance would be taken advantage of by the vendee to make an absolute estate pass, contrary to the intention.
(481) There is another consideration: when a legatee sells it is to answer some private purpose of his own. In such a case, to give an additional effect to the deed because he was executor would be to prevent the power to sell, given for the interest of the estate, by calling it into use when such interest had not been taken into the account, thus by implication supposing a power to have been exercised under circumstances which, in case of a direct exercise of it, would have amounted to a gross abuse. In this case, for instance, the legatee for life and the person apparently entitled to the contingent limitation join in the sale of a slave for their own private purposes, because they wanted money to build a new mill and to support the other negroes, which was a charge on the legatee for life, and not a debt of the estate. The interest of the estate did not call for the sale of a negro, as there was perishable property; the debts did not exceed $25, and the sale of a valuable negro under the pretext of paying off that sum would have been a gross abuse of power. There is no principle upon which this Court will, by implication, make the executrix guilty of this abuse of her power in order to sustain a sale made by her as legatee.
The plaintiffs in the original bill are entitled to a decree for costs. The cross bill must be dismissed with costs.
PER CURIAM. Decree accordingly.
Cited: Quince v. Nixon, 51 N.C. 292; Windley v. Gaylord, 52 N.C. 57. *Page 337
(482)