Negro George v. Corse's Adm'r.

The Judges delivered their opinions seriatim.

Dorset, J.

In forming an opinion on this case, I have been truly sensible of the peculiar hardship of the situation of the petitioners, and have felt, as far as I consistently could do, an anxious disposition to relieve them. But, after mature reflection, I feel convinced, that this court, on the proceedings now before them, is incompetent to grant relief.

Previously to the passage of the act of assembly of 1796, ch. ©7, the manumission of slaves by last will and testament was prohibited; by the l3th seciion o£ that act this prohibition was re*5moved; but upon this express condition, that no such manumission “shall be effectual to give freedom to any slave or slaves, if the same shall be in prejudice of creditors.” Whether in case of an insufficiency of the personal estate, (exclusive of the negroes manumitted,) to pay the debts of the deceased, it be deemed a prej'udice to creditors, within the meaning of the act of assembly, to subject them to the delay and expense unavoidably incurred in pursuing in a court of equity real assets, which have come to the hands of the heir by descent, I deem it unnecessary to determine. The ground on which I concur in the judgment given by the court below against the petitioners is, that the question of the existence of a sufficiency of real assets to pay the debts of the testator never can be tried on an issue between the petitioners and the executor or administrator only, without “prejudice” to creditors. It would be an issue to which they are no party, and to protect whose interest nobody appears. As far as relates to the personalty, the executor or administrator is competent to act for all who are concerned; but in trying the facts, whether there be assets by descent in the hands of the heir, and what is the amount thereof, he has no interest either personally or in right of representation. Virtute officii he is neither bound to acquire, nor presumed to possess any knowledge upon the subject. With the title he is unacquainted — with the value of the land equally uninformed. Let the proof offered to establish the same be what it may, he comes prepared neither to rebut nor resist it. Sanction the doctrine contended for by the appellants, and if at any period of his life the deceased be shown to have been seized of real property, the issue will be found for the petitioners, although, if proper parties interested were before the court, it could be made appear that he had conveyed away all his right by legal conveyances executed iorty years before his death. A most exaggerated estimate of the value of the real assets may be made by ignorant or partial witnesses; yet none, whose interest it is to do so, have an opportunity of cross-examining them, or disproving their statements The judgment of the court-having once given effect to the manumission, on the ground that effects in the hands of the heir should be applied to the payment of the debts, the executor or administrator is absolved *6from all responsibility, except as to the residue of the person^ ialty, and the creditors would be left to seek, through a court of equity, real assets, which perhaps never had an existence. Nothing was farther from the design of the legislature, than to have authorised a mode of judicial proceeding so unprecedented, and so unjust and prejudicial to creditors.

It may be urged that the case now before us should be an exception to the general rule, inasmuch as the testator has, in the contingency which has happened, charged his real estate with the payment of his debts; and it is admitted in the bill of exceptions, that the residue of the personal, with the real property, is adequate to their payment. But this suggestion is entitled to no weight.

In the first place the testamentary charge of the debts upon the land, was revoked by the deeds of conveyance subsequently executed; and if it had not been, the effect would be the same, as the existence or value of the property charged could not be inquired into. As regards the admissions by the appellee, he was wholly unauthorised to make them, and the court was incompetent to pass judgment upon the facts they contained — not being matters in issue in the cause.

I am of opinion that the judgment of the county court ought to be affirmed.