Ridgely’s Notebook III, 533
High Court of Errors and Appeals of Delaware.
October 23, 1821.
Petition for freedom in the Court of Common Pleas for Kent County.
Judgment below for the respondent, the master. Judgment affirmed.
John B. Morton, of Queen Anne’s County in the State of Maryland, died in the year 1802, possessed of a personal estate of the value of $812.61 which consisted, among other things, of four slaves, one of whom was the petitioner, Edward Caldwell. Letters of administration on his estate were granted to John Fisher of Talbot County, November 20, 1802. An inventory and appraisement were returned March 22, 1803. Morton left issue a daughter named Nancy, his heir at law, who married Thomas Carter, the defendant. Fisher, eleven or twelve years ago during his administration, sent the petitioner into the State of Delaware occasionally, to work on his farm in sowing wheat and in performing other such temporary jobs. This was the foundation of the petitioner’s claim to freedom.
After Fisher’s death, Henry Driver, the guardian of Nancy Morton, recovered of John W. Bordley, the administrator of Fisher, the said Negro Edward, and $1048.14. By the laws of Maryland, an administrator cannot sell or dispose of a slave of his intestate unless for the payment of debts, and then not without an order of the Orphans’ Court. He holds the slave as a trustee for the heir; and the slave descends to the heir, unless he is sold for payment of debts by order of the court. No such order had been made to Fisher to sell or dispose of this slave.
THE COURT was of opinion that as Fisher held this slave as a trustee, he could do no act to divest the interest of the cestui que trust. That he had no right to sell the slave, even for the benefit of the heir, without an order of the court. And if he could in this manner liberate the slave, he might do indirectly what he could not do directly. That his unlawful act ought not to prejudice the cestui que trust.
Page 669
NOTE. April 6, 1822. In 4 Cranch 267, in the case of Rose v. Kimely,
Martin in his argument said, “So in Maryland, although the statute forbids an administrator to sell the slaves of his intestate if there be sufficient other personal property to pay the debts, yet if in violation of that law he sells the slaves, the title of the purchaser is good.”