Love, Sheriff, vs. Williams.-Opinion by Justice SEMMES. junior execution creditor-money must be paid on executions according to their priorities. 2 Watt's Reports, 303. The sale in this instance was valid, and, consequently, the lien of Williams' execution was gone, because the law here interposes and protects the rights of an innocent purchaser. See 10 Watts' Reports, 212. And this is the only reason which can be assigned why the sale under a junior execution is valid. One of the great objects designed to be effected by the statute 29th Charles II, was to secure the possession of purchasers under execution. 1 Term Reports, 729. The levy of the junior writ did not in any respect affect the priority of the senior, and the only effect of the sale was to divest the defendant in execution of the title, and vest it in the purchaser. If the elder execution creditor attempted to assert his previous lien on the property, it then became a question with him and the purchaser, and the law favors the latter not by reason, however, of the junior writ having acquired any priority by virtue of the levy and sale; but, when the creditor claims the proceeds of sale, the question is then between him and the sheriff; or, if the junior creditor interposes, still the priority of the claim determines the then respective rights. Numerous authorities in England and in this country could be referred to which show that where several executions are levied on the same property, and it is sold under all, the proceeds of sale are always applied to the senior writ. If the doctrine be true, as is asserted, that the levy and sale of property under a junior execution, entitles it to the proceeds, then the principle in all these authorities is false, and the executions should be satisfied pro rata out of the fund raised by their joint levy and sale. But the principle in these cases is true, and is a necessary consequence from the statute giving priorities to executions--that no matter under what writ the sale is made, the proceeds of right belong to the senior execution. I do not understand the authorities referred to in 1 Term Re Love, Sheriff, vs. Williams.-Opinion by Justice SEMMES. ports, 729 and 4 East, 523, 545, as asserting any other principle than that the sale is valid, though under the junior writ; a doctrine which no one questions. But the American authorities, so far as I have had time to examine them, decide on principle "that it is wholly immaterial upon whose execution the sale was made; the execution first in the hands of the officer is entitled to the proceeds of the sale." 6 New Hampshire Reports, 73 and the numerous authorities referred to. 3 Watts & Sergeant, 438. 2 Hawks' Reports, 309. Also, 5 Cowen's Reports, 396. In the last authority, it is true, the levy was under the first execution, but this did not give it any greater preference than the law had previously given it, and the court decided that the proceeds of sale of right belonged to the senior writ though made under the junior. If, then, it be true that the execution which first comes into the hands of the sheriff has a priority to the proceeds of sale, why compel the execution creditor to resort to his action against the sheriff to recover that which is in the hands of the latter, and which he has no right to control? The principle is not altered by his having paid it out; for whether a fictitious or a real payment, he did it voluntarily, after notice by the attorney of Williams, and, consequently, with a full knowledge of his liabilities. The money raised on execution is always considered in the custody of the law, and the sheriff, being the ministerial officer of the court, should, under its order and direction, make the proper application of it. Why allow this officer a discretion in this matter which the law does not warrant but in every instance condemns? I fully accord with the court in the case reported in 1st Strobbart's Reports, 24, that it belongs to the court to advise and command its own officers-to dispose of the funds collected under its process-to decide the conflict of suitors as to such funds, and that in the exercise of these functions its power is complete. Where a case ari Love, Sheriff, vs. Williams.-Opinion by Justice SEMMES. ses in which equitable rights are involved and it is doubtful who is entitled to the money, the court may, in its discretion, forbear a summary order, and leave the claimants to litigate their rights by suit. In this case, it is no answer to say, that the sheriff is liable by suit to the injured creditor. So he is, where he refuses to make a return; and it cannot be doubted but that it is competent to the court to compel him by attachment to do his duty in this respect. Without this summary remedy in the court, its officer is placed above and beyond its control, and execution creditors can only recover their money at his option and pleasure. If it is conceded that the court has the power to order a return of executions, the principle itself is conceded, and the court can direct the application of the money. In this case, no action for a false return could be maintained; the return of the sheriff, as far as it went, was true; it was not controverted. Williams may have a right of action against the sheriff for neglect of duty, but I cannot see the propriety of compelling him to resort to an action at law against the sheriff and his securities, when, in my opinion, he has, through the aid of the court, an efficient and summary remedy. I am not aware of any principle of law which denies to an execution creditor the remedy allowed in this case by the court below. The power is incident to every court, and its exercise is highly salutary, and prevents tedious and protracted litigation. The practice which has prevailed in the courts of the State, I believe to be sound in principle, and its obvious utility no one doubts. A contrary practice will, I fear, make an execution, which is the end, but the beginning of a law suit. Lott vs. Meacham, Executor.-Statement of Case. LUKE LOTT, PLAINTIFF IN ERROR, V. BANKS MEACHAM, EXECUTOR OF JONATHAN THOMAS, DEFENDANT IN ERROR. An estate in remainder may be limited after a life estate in personal property by will and effect should be given the intention wherever it is manifest that such estate was designed to be created. The legal estate in a chattel bequeathed by will remains in the executor until he assents to the legacy; and when there is an estate in remainder created by the will, the assent to the estate for life will enure to the benefit of the remainder-man. T. bequeathed the whole of his personal estate to his wife for life, and directed that at her death the whole of his property, real and personal, should be sold and equally divided between his six children-Held, that it was clearly the intention of the testator that his children should not take the property in specie, but that the title to the property, on the expiration of the life estate, vested in the executor, as remainder-man, in trust, to be sold by him for the benefit of the children; and the exercise of the power of sale in such a case, unless otherwise directed, belongs to the executor exclusively, virtute officii. When there is a trust reposed in an executor, and a power of sale coupled with it in order to execute the trust, is not competent to the Court of Probate to discharge the executor until it appear that he has performed the duty. Banks Meacham, executor of Jonathan Thomas, brought an action of replevin against the plaintiff in error, in the Circuit Court of Gadsden County, for the recovery of certain slaves, alleged to be the property of the plaintiff as executor. The defendant pleaded not guilty—ne unques executor, and that the goods and chattels in the declaration mentioned were the property of him, the said defendant, and not of the plaintiff. At the trial of the cause in the circuit court, before the HON. THOMAS BALTZELL, Judge of the Middle Circuit, at the Spring term, 1848, the plaintiff, to prove and maintain the issue joined, offered in evidence a certified copy of the will Lott vs. Meacham, Executor.-Statement of Case. of Jonathan Thomas, and the following clause, relating to the property in dispute, was read to the jury, viz: "Item. I lend to my beloved wife, Mary Thomas, for her own use, support and maintenance during her widowhood, the following property, viz: the tract of land whereon I now live, eight negroes, Old Will, Chloe, Tom, Mary, James, Patsey, Ben and Rachael, together with one horse, four mules, all the balance of my stock of cattle, hogs, goods, &c., with all my household and kitchen furniture and farming utensils of every article and kind; to have and to hold all and singular the above mentioned property, for and during her single state, or widowhood, and no longer. And in the event of her marrying, I will and order that my executors take charge of the above mentioned property, so as to handsomely support and maintain her, my beloved wife, for and during the whole remaining part of her life; and at her death, I further will and order that the whole of the above property be sold, and equally divided between my six children here below named, viz: Elizabeth McCall, John F. O. Thomas, Micajah Thomas, Joseph Thomas, Ann Mariah Thomas and Susan C. Thomas, their heirs or assigns forever." The said plaintiff further proved that he was named executor in said will, and that, on the 13th February, 1832, he made probate thereof in the County Court, and letters testamentary thereon were issued to him in due form of law. He also proved that he, as executor, delivered the possession of the property in said devise and bequest specified, to Mary Thomas, the devisee and legatee of the life estate given therein, which was by her held to the period of her death; that said Mary did not intermarry after the death of the said testator, and that, after the death of the said Mary Thomas, the said property was taken possession of by the persons named in said will to take the proceeds of the same after her death, and that, by amicable agree |