#### WILLIAM LEIGH, ADM'R. &c. vs. ABSALOM B. SMITH & AL.

Where a -will i<¡ made by a feme covert, under a power, this paper must be as a will in a court of probate, before a Court of Equity will act on it. But when the Court of Equity is called to act on such an instrument, it must, notwithstanding such probate, be again proved before the Court of Equity, that it was executed according to the power, that being a question the court of probate does not undertake to decide.

When a feme covert has a separate estate in property, she may make a will disposing of it and appoint an executor, and such executor shall be her general representative.

Where she has merely a power to appoint by an. instrument in the nature of a will, the person she nominates in such an instrument as her executor, is not such in the usual acceptation of the term, but is merely an appointee in trust, in the first place for her creditors, and, secondly, for those, to whom she directs the property to go.

The appointees of property, which a feme covert has a right, under marriage articles, to appoint to any person she thinks proper, are trustees lor her creditors in the first instance.

An executor, or an appointee in the nature of an executor, is not bound to, plead the statute of limitations, nor can the legatees or ulterior, appointees compel him to do so.

'The cases of Lash v. Ilauser, 2 Ired. Eq. 493. Redmond v. Collins,, 4 Dev. 441, Williams v. Maitland, 1 Ired. Eq. 92, cited and approved.

Cause removed from the Court of Equity of Northampton County, at the Spring Term, 1844.

The following is the state of the facts, as disclosed by the pleadings and proofs:

In March 181?', Leonard Purdy and Sarah Smith, being about to intermarry, entered into a marriage contract, wherein, it was stipulated, “that the said Purdy chalí have during his natural life and fully possess and enjoy, without any molestation, all the negro property belonging now to the said Sarah Smith, together with the use of the land, &c.” — “provided always, and it is the true intent and meaning of this covenant^ •that if tiie said Sarah should die without any child or children, during her marriage with the said Purdy, then and in *443that case, she is, and by these presents, at liberty and vested with full and ample powers to give and bequeath the said negroes to whomsoever she pleases.” This is as much of the covenant, as it is necessary to set out. The marriage took place, and Mrs. Purdy died in the year 1818, without having any child by Leonard Purdy. Before her intermarriage with Mi\ Purdy, Mrs. Purdy had been the wife of Etheldred Smith,upon whose estate she had administered, and the intestate Richard Crump,- whose representative the plaintiff is, had been one of her sureties to her administration bond. The defendants are her children afld grandchildren, by her first husband. Mrs. Purdy left behind her a testamentary paper, signed and sealed by her, and properly witnessed ; in which, she “gives and bequeaths” to her daughter Rebecca Gary, then the wife of the defendant, Roderick B. Gary, and, after her death,to her children,- apart of these negroes ; and to the defendants the two Smiths,- others of them. Then follows this clause. “The whole of said negroes, hereby bequeathed, are subject to the life estate of my husband, Leonard Purdy,- agreeable to a marriage contract entered into between me and my said' husband, and dated the 29th day of March, 1817. I do hereby nominate, ordain and appoint my friend, William B. Lock-hart, my executor, of this my last will and testament.” This paper was duly proven in the County Court of Northampton, at the March Term, 1820. Mrs. Purdy died day of in the year 1818, leaving her husband alive.

During the life of Mrs. Purdy,- an action was brought on her administration bond, against her and her husband, and the sureties thereto, by the defendant, Roderick B. Gary, as guardian of his own children and of the defendants, the Smiths, to recover from them their distribution shares of their' father’s estate. A recovery was made in the year 1826, and the intestate,- Richard Crump, paid his rateable proportion thereof, Purdy being insolvent — and the bill is filed to-subject the negroes,'in the hands of the defendants, to the payment of that portion. Before this recovery was made,an action had been brought by the defendant, Gary, to recover *444from William B. Lockhart, as executor of Mrs. Purdy, a debt which was due him from Mrs. Purdy; a judgment had been obtained by him, and, under the execution, he had purchased the negroes in question, and held them as his until the year 1838, when the defendants having filed their bill against him as their guardian, this court decreed, that, as he was their guardian, he held the slaves in that fiduciary character ; and decreed he should surrender them to the defendants. More than seven years elapsed, from the time the plaintiff’s intestate paid the money, under the judgment recovered against him, as the surety of Mrs. Purdy on her administration bond, until the filing of this bill — and the defendants pray the benefit of the act of 1715, passed for the protection of the estates of deceased debtors. Among other grounds of defence, the defendants rely upon the fact, that an action had been brought by the plaintiff’s intestate, as one of the sureties of Mrs. Purdy, upon her administration bond, against Roderick B. Gary, upon his guarantee to them, to induce them to become such sureties — that other suits had been brought by the other sureties against him, the said Gary, for the same cause, all of which had been compromised, and that the sum paid by Gary to the several plaintiffs, was received by them, under said compromise, included the demand now set up, and was in full of all demands against the estate of Mrs. Purdy. It further appears in the case, that the present plaintiff; after the payment of the money to him by Gary, brought an action against William B. Lockhart, as the executor of Mrs. Purdy, and recovered against him the amount of his claim; the jury having found by their verdict, that said Lockhart had no assetts, the said negroes never had been in his possession but were at the time of the plea and judgment in the possession of Gary, claiming them as his own property. The defendants aver that the said judgment was obtained by fraud, and in derogation of their rights. They further contend that, by the testamentary paper, called the will of Mrs. Purdy, the defendant Lockhart was not an executor thereof, and the judgment obtaiued against *445him, was null and void, and did not compromise any of their rightS-

B. F. Móore and Iredell for the plaintiff.-

Badger for the defendants.

Nash, J.

Upon examining the evidence in this case, the' Court is satisfied, that in the compromise of the suits, brought1 by the sureties of Mrs. Purdy against Mr. Gary as a guarantee,nothing more was settled, than their claims against him • that nothing more was intended-by the parties tobe included and that in fact it extended no farther. It did not embrace the claim, now urged by the plaintiff, and he is at liberty, notwithstanding said compromise, to urge his present suit. They are further of opinion, that it is not necessary to decide upon' the question, whether the recovery made by the plaintiff against William B. Lockhart, as executor of Mrs. Purdy, was' obtained by'fraud or not, as they are satisfied, for the reasons hereinafter stated, that the said recovery was a mere nullity. The important question presented by the case is, have now the defendants the right to plead the Statute of 1715, in bar of the plaintiff’s claim? William B. Lockhart, the executor, as he is called, of the will of Mrs. Purdy, is a party defendant and has not’pleaded it. Can the other defendants, who are" really the parties interested, do so ? This involves the question,-in what character is William B. Lockhaft, to be considered; is he the executor, strictly speaking, of Mrs. Purdy’s wilU or is he merely an appointee, to carry into execution the trust, which the law annexes to the appointment' of Mrs. Purdy?' It is deemed unnecessary, at’this time, to enter into an elaborate history of the power of feme coverts to make wills, with or without the consent of their husbands. The paper produced in this case, as the will of Mrs. Purdy, is an execution of a power secured to her, when she was discovert, and in every respect capable, not only of binding herself, but of bind-ing such persons as contracted with her.- She, in pursuance of the power thus secured to her, executed,- before two wit-' *446nesses, the instrument'she calls her will. Such a testamenta* ry paper, before it can be available, either in law or equity, must be regularly proved before the proper tribunal. In a courj. 0p equity sue{1 probate alone will not suffice ; for the courts of probate, in such cases, do not feel themselves called on to examine, whether the appointment is authorized by the power.- There are other special circumstances, connected with a testament, which are not trusted to a court of probate, and which the grant of probate does not determine, but leaves open to the temporal courts. Upon the probate, therefore, before the ordinary, a court of equity does not aet, but requires that the instrument shall be proved, before them, to be such as was required by the power. The witnesses, therefore, must be called to prove that the instrument, when the feme covert has power to appoint, was her act and is duly executed according to the requirements of the power.

In this case, the will of Mrs. Purdy has been admitted to probate before the appointed tribunal, find in this court is admitted by the answers to be duly executed, under the power given her by the marriage contract, for only under it, as such, can they claim the negroes at all. The court is, therefore, of the opinion that the will of Mrs. Purdy has been properly proved, and is a sufficient execution of the power secured to her.- In her will, she refers to the marriage contract, as governing the interests she conveys, and that is satisfactory evidence, that she considered herself as executing the power. What then is the character and power of William B. Lock-hart under that paper 1 Is he in the sense, in which the law understands the term, an executor ? We think not; we consider him here but as an appointee in trust, to carryout the intentions of the appointor, as either expressed by her or implied in law. By this paper, Lockhart, though called an executor, is not strictly and properly such, even in the view of a Court of Equity, because Mrs. Purdy had no seperate estate in the negroes, which she could bequeathe. When a feme covert has such estate, she may make a will and appoint an executor, and such executor shall be her general representative. Hulme v. *447Tenant, 1 Brow. C. C. 16. Fettiplace v. Gorges, 1 Ves. Jr. 46. Peacock v. Monk, 2 Ves. Sr. 191.

But though it be true, that, in this case, Mrs. Purdy could aot constitute Lockhart an executor, properly so called, it does not follow that his nomination is necessarily unmeaning, and to be rejected altogether. The paper is not a testament of personal estate, but it is an appointment under the power in Mrs. Purdy. It is an appointment of the whole property, over which she had a power, and she has no other property. Then the enquiry is, what is the meaning of such an appointment of Lockhart as executor, in such an instrument ? It is apparent from reading the paper, that Mrs. Purdy thought she was disposing of her separate property, and in that view she appointed an executor. But it turns out, the instrument cannot operate in that way, but is only an appointment, and it is the necessary construction of it, that, as the property would have vested in Lockhart, by virtue of his appointment as executor, so he must be intended to take to the same extent, and for the same purposes, as appointee in the instrument. "What else could she mean by nominating an executor, but that he should take the estate in that way, in trust for creditors in the first instance, and then .for the several appointees mentioned in the instrument? It is said, there was no necessity for an executor, as the creditors have the same remedy against the children, as appointees. But there was the same necessity, as in ordinary cases of executors to wills. One is, that creditors may obtain satisfaction from a single source, instead of going against all the legatees, and also that the interest of the creditors and legatees may be protected by a competent person. Here the ultimate appointees were a married woman, children and unborn grandchildren, and the appointment of some person, as executor, to act quasi in that character, was convenient and useful. Under these considerations, we hold this appointment.to be in the first instance to Lockhart, to pay the debts of Mrs. Purdy, and then for the use of the other appointees, as if he were regularly an executor, and they were regularly legatees. Equity holds, that where an individual has a gen-*448power of appointment over a fund, and actually makes appointment according to his power, the property appointed shall form a part of his assetts in equity, for the payment of his debts, in preference to all claims upon him, by volunteers, either as legatees or appointees. Sugden on Powers, 2 Vol. p. 30, and the authorities there cited. Lockhart then being an appointee in trust, the creditors of Mrs._ Purdy could no more reach the property in his hands by an action at law, than if the appointment had been direct to the defendants. They could reach the assetts only through the aid of a Court of Equity. The judgment at law;, obtained by the complainant against Lockhart, was therefore void, and, of no effect, and could not, as we are disposed to think, break, of itself, the running of the statute of 1.715. Lockhart is a necessary party to this bill. To him is entrusted the right and the duty to take care of the property of the appointor, and, when called into a court of justice, to defend it. It is somewhat doubtful, whether the ultimate appointees are necessary parties. Lash v. Hauser, 2 Ired. Eq. 493. Castlelon v. Fanshaw, Pre. in ,ch. 100. Exparte, Dundney, 15 Ves. 498. But if they are necessary, it is because they are interested in the fund, and may have a right to see, that the trustee or appointee makes all the .defence he is by law bound to make, or because they are in possession of the fund. It is well settled, both in England and this country, that the executor may or may not at his pleasure, plead the statute of limitations. It is indeed more prudent, .that he should do so, but he cannot be compelled to plead it, by a legatee. He is the pars principalis or legiiimus contradictor, who is bound and authorized to act for all persons entitled to interests under the will as legatees. Redmond v. Collins, 4 Dev. 441. Williams against Maitland, 1st Ired. Eq. 92. And the legatees are bound by his act : 11 he alone brings a bill for an equitable money demand the testator. He is the only party necessary by a creditor for an account of the assetts, neither the particular nor the residuary legatees being required, though their interest may be affected.” Redmond v. Collins, 4 Dev. 441. In this case, *449Lockhart, the appointee in trust, and a defendant, admits in his answer, that he has never paid to the plaintiff the money claimed by h,im, and he does not plead the statute of limita•tions, and we hold that the defendants, who are the appointees, ,can have no right so to do. If the negroes had been in the .possession of Lockhart, there is no question but he might have paid the debt due to the plaintiff,.although barred by .the statute, without exposing himself to the liability of paying over to the ultimate appointees. Williams v. Maitland, 1 Ired. Eq. 92.

Per. Curiam, decree for the plaintiff