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 *426share 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 executrix to discharge the debts in a due course of administration, and in the period within which, by law, she would be compelled to pay them, and then to pay and deliver the legacies bequeathed by the will. As to such legacies as were bequeathed to herself the law will assume that she held them as legatee, after the lapse of a sufficient period allowed for the settlement of the estate.”
In the case before us, the executrix settled a final account in June 1829, and in November following sold the boy. There is no evidence whatever of any debts being due by the estate at the time of the sale, nor is there any evidence that the boy was sold by her as executrix; and therefore, the presumption of the law arises, that she sold him as legatee, and not as executrix, and, of course, only disposed of her life interest, which, under the pleadings and proof in the cause, she was only competent to do.
It is said, however, that the answer being responsive to the bill, and not being rebutted by proof, is evidence that the defendant purchased an absolute interest in the negro, and that the presumption of which we have spoken is thus removed. It is no where distinctly averred in the answer, that the defendant in this purchase dealt with Mrs. Lark as executrix, fie says, “that he purchased the said negro boy in Novem*428ber 1829, bona fide, as a slave for life, for the sum of thirty-five dollars, and that he dealt with said Amelia Lark as having full authority to sell said negro for the life of said boy, that he did not know that said Amelia Lark had only a life interest in said boy as charged in the bill.”
Having passed a final account, and there being no proof of any necessity for a .sale for the purposes of the estate, she could sell rightfully only in one character—that of legatee for life. The law will not presume she committed a wrong upon the legatees in remainder. As far as we .can gather from the testimony, she sold property to pay the debts and all charges, except her commissions. The defendant claims title under her, as executrix, after her office had been fulfilled, as far as we have any evidence on the subje.ct. He should show .clearly that she acted in her representative capacity at the time she made the sale. 2 Gill and John., 99. It is n,ot sufficient to show he purchased under the impression that Mrs. Lark was authorised to sell the boy for his own life. The defendant knew of the will, because he was surety on her testamentary bond. He ought to have known, that after payment of debts, &c., the boy was her property only during her own life; and fit- was his own negligence if he purchased from her without requiring proper evidence of title and right to sell. As between vendor and vendee there might be ground on which to decide against the former, but where the interests of third parties are- involved, they cannot be injuriously affected without evidence that Mrs. Lark acted as executrix, in which character alone could they be bound by her acts.
Greenbury Lark, the testator, died in 1826, and his wife, his executrix, in 1849. Their daughter married in 1843 and died in 1846, and the question is, whether her husband, the defendant, Heath, hath any interest in the subject of this controversy? We regard the legacy as having vested during the life of his wife Emily. The case of Spence vs. Robins, 6 Gill and John, 507, establishes this proposition.
Decree reversed and cause remanded for further proceedings.