Sampson County NcArchives Court.....Cross, Jonathan 1811 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines ddhaines@gmail.com December 9, 2005, 1:47 am Source: North Caroline Reports, Vol. 6 Written: 1811 ADMINISTRATOR OF CROSS V. TERLINGTON. From Sampson; July Term 1811 pages 11-14 1. A, being the next kin of B, conveys the personal property of which B died possessed to C, who takes out letters of administration on the estate of B and afterwards procures the conveyance to be proved and registered. A brings an action of trover against C for the property, alleging that the conveyance had been fraudulently procured. Upon the trial the jury find that the conveyance had been fraudulently procured, and is void; but C insists that A, having brought an action at law, must show a legal title, and this can only be done by showing the assent of C that he should have the property; for until this assent be given, the legal title is in C as administrator: Held, that C having recognized the title of A before administration granted, by accepting the conveyance, and having recognized it after administration granted, by procuring the conveyance to be proved and registered, he has thereby acknowledged A's right, and given such assent as vests the legal title in A. 2. An administrator cannot bring trover for a chattel after his consent that defendant shall have it, before administration granted. This was an action of trover for a number of negroes, mentioned in the plaintiff’s declaration. On the trial the following facts appeared in evidence: Laban Taylo died in 1800, possessed of the aforesaid negroes, intestate, and without issue, and without brothers or sisters, or the children of such; leaving no father, but a mother, who became entit1ed to the negroes in question. In January, 1804, and before any administration was taken out upon the estate of Laban Taylo, Abigail Taylo, his mother, conveyed to Phelicia Terlington, wife of the defendant, the aforesaid negroes, by an instrument of writing, in the following words, to wit: STATE OF NORTH CAROLINA - Sampson County. Know all men by these presents, that, whereas my son Laban Taylo, Esq., late of the county of Sampson, deceased, hath lately died intestate, being possessed at the time of his death, of very considerable personal estate, consisting of sundry negro slaves, to wit, Moses, Washington, John, Daniel, Nan, and her two children; Anne, and her child, also a considerable stock of different kinds, household furniture, and other chattels; and whereas, although no administration has yet been granted of the goods and chattels of which the said Laban Taylo was possessed at the time of his decease, nevertheless, for and in consideration of the natural love and affection I have towards my beloved sister, Phelicia Terlington, wife of Southey Terlington and in consideration also of the sum of five shillings, by the said Phelicia to me in hand paid before the ensealing of these presents, I have granted, bargained and set over, and by these presents do grant, bargain and set over unto the said Phelicia Terlington, all and singular, the personal property aforesaid, and all and singular all and every personal property of every kind and nature whatsoever, of which the said Laban Taylo died possessed, and to which I am or may be entitled under the several acts of Assembly of the State aforesaid for the distribution of intestate estates, and this deed I am actuated to execute from a belief that it will tend to the true benefit of myself and of those whom the laws of God and my country have decreed should benefit by my property. Witness my hand and seal, this 31 January, 1804. her ABIGAIL X TAYLO. (SEAL.) mark. Signed, sealed, and delivered in presence of JONATHAN FRYER; JOSHUA BASS. SAMPSON COUNTY - August Term, 1804. Then was the within proven in open court, by the oath of Joshua Bass. Ordered, etc. HARDY HOLMES, Clerk It was in evidence that the said Southey Terlington procured the above—recited conveyance from said Abigail Taylo, and was present when she executed it. In February, 1804, letters of administration upon the estate of Laban Taylo were granted to the said Phelicia Terlington; and shortly after this the above- named Abigail Taylo intermarried with Jonathan Cross, who afterwards died, and the present plaintiff administered upon his estate. The jury found that the neroes had so been in the possession of Jonathan Cross and his wife, during the coverture, as to enable him, in his own name, or his administrator after his death, to prosecute and maintain a suit; and the jury ( 8 ) further found that the above recited deed of conveyance was void, having been obtained by fraud and misrepresentation, and gave a verdict for the plaintiff. There was no evidence of any assent on the part of the administratrix of Laban Taylo, that Jonathan Cross, or his wife, should take the negroes so as to vest a lega1 right in them, or either of them, except what appeared upon the above recited deed of gift; and the question reserved for the opinion of the Supreme Court was, whether the before recited deed be not such evidence of assent on the part of the defendant and his wife that the legal interest in the negroes vested in Abigail Taylo; that after administration the defendant cannot retract and claim the property as administratrix, upon the ground that no assent had been given. Jocelyn for plaintiff. Sampson for defendant. LOCKE, J. It is true that a legatee or person entitled ( 10 ) to a distributive share cannot legally get possession thereof without the assent of the executor or administrator, either express or implied; but slight declarations of the executor or administrator, as well as many acts, will in law amount to such assent. In 1 Com. Dig., 342 (C. C.), it is said, if an executor take a grant, lease, etc., from the legatee of the thing or term bequeathed, it will amount to an assent. To this effect also is 10 Co., 52-6, Office of Executors, 322-3. Or if he offer money to legatee for the purchase, or send another to the legatee to purchase it of him. 1 Com. Dig., 342. These and many other acts of the executor will amount to an assent. This case states that Abigai1 Taylo, the person by law entitled to the estate of Laban Taylo, deceased, did execute a deed to Phelicia Terlington for the negroes in question; but that at the time said deed was executed no letters of administration had been granted, and that afterwards the said Phelicia obtained letters of administration on said estate. The authorities above recited would be sufficient to show the assent of the administratrix, and to vest the property in the person intitled to the distributive share of said estate, if Phelicia, at the time of taking the deed, had been the administratrix. But it is said she was not, and, of course, that her attempt to purchase and acquire title by this deed ought not to bind the administratrix. Whitehall v. Squire, 1 Salk, 296, is a case where a person, before administration granted, agreed that the defendant being in possession of a horse belonging to the estate of the deceased might keep him, in satisfaction of funeral charges; and afterwards, having taken out administration, he brought an action of trover to recover the horse. The Court held that he ( 11 ) was bound by his agreement, and judgment was rendered against the administrator by two of the judges. It is true, a very learned judge thought otherwise, and on this case differed from his brethren. If, then, this case should be considered as law, it is decisive of this question; not that there was any express agreement on the part of Phelicia Terlington that Abigail Taylo should retain this property as her own, but because her receiving a deed of bargain and sale for a valuable consideration was at once an admission and acknowledgment on her part that Abigail Taylo was the true owner, and competent to convey the negroes in question. It is unnecessary to decide this case merely on this ground, inasmuch as Phelicia Terlington, after letters of administration were granted to her, to wit, in August, 1804, had this deed proved in the County Court of Sampson. If as administratrix, and against this deed, she intended to claim this property, why have the deed proved and recorded? It would strengthen the evidence against her claim. If she intended to claim under the deed, then probate thereof in the County Court was necessary to give to it validity. It may therefore be fairly inferred from this act that she admitted and believed the right of this property to have been once in Abigail Taylo; and by recording the deed intended to confirm that right, and make her title under the deed good and valid. Is not this equiva1ent to obtaining the deed after administration granted? or, at least, equal to sending a person to purchase the legacy from the legatee, which, as before mentioned, amounts to an assent? It the opinion of the Court that in this case there has been such an implied assent as to vest the property in Abigail Taylo, and that judgment ought to be rendered for the plaintiff. North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. Uzzell and Company, State printers and binders, 1910. 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