PISTOLE VS STREET, adm'x, 5 Port. 64

HOPKINS, C. J. The defendant in error, obtained letters of administration, upon the goods and chattels of Eleazer Lee, deceased, in the State of South Carolina, in the year, eighteen hundred and twenty; and was afterward married to one George P. Street, with whom she moved to this State, before her administration was closed. They brought with them, to this State, the slave in controversy between the parties. The slave came to the hands jof the administratrix, as a part of the personal property of her intestate.

Some time after the settlement of her husband and herself in Urn State, he sold the slave to the plahdiif in error. Several years before the sale, a statute was exacted by the Legislature of South Carolina; the effect of which ■is to annul at law, and in Equity, all sales of personal property, made after the passage of the act, by executors or administrators, without an order previously obtained, from a Court of Equity or. a Court of Ordinary,,except such sales were directed by will. After the death of George P.

Street, the defendant in error, as administratrix of Lee, brought the action of detinue in this case, against the plaintiff in error, to recover the slave. Upon the trial of the cause, the Court below, instructed the jury, that the right to administer the estate of Lee, devolved upon George P.

Street, by his marriage with the administratrix, and during the continuance of her coverture, her rights as ad-ministratrix, were suspended; but after the death of her husband, she had the right to administer the estate of her intestate, so far as it remained unad-ministered, and if the sale, by her husband, of the slave, to the plaintiff in error, passed no title to him, she might now, as administratrix, maintain her action to recover the slave. These instructions, together with others, which we do not deem it material to take notice.of, were excepted to by the plaintiff in error.

One objection to a part of these instructions is, that the Court submitted the legal question, whether the sale transferred any title to the purchaser, to the jury, to be determined by them. It is contended by (he counsel, for the defendant, that this objection does not show there was any error in the •instructions, because it is admitted in the bill of exceptions, that other instructions were given, which do not appear in it, and if they had been inserted in the bill, it might appear that the Court did decide the question.

If cannot, we think, be reasonably intended, that a Court, omitted in a bill of exceptions, any part of the opinion to the jury, upon the same subject that the part excepted to, related, and which would show that the latter part was proper. In practice, it is usual, where one instruction is excepted to, and it is connected with or qualified by another, which was also given, to insert ■the latter in the bill of-exceptions. The party who .excepts, has no right to garble an opinion, and the presumption is, a Court would not suffer it to be clone.

The question, whether the plaintiff in error acquired any right under the sale, did arise from the proofs in the cause; and from the record, it appears, the question,' which was a legal one iii its character, was referred to the jury. We think it probable, that one word was substituted for another, by mistake, either in preparing the bill of exceptions, or in transcribing it. But we have no alternative. The point must be decided as the record presents it, and for the error in refering a legal question to the jury, the judgment must be reversed.

As the question, whether the administratrix can maintain the action, was argued at the bar, and the cause must be remanded, we shall express our opinion on the point. The principiéis, we think, well settled, that upon, the marriage of an administratrix, her husband acquires all the rights of the administration, for the joint lives of his wife and himself, as fully as if it had been granted to himself. During the coverture, the administratrix is incapable of doing any valid act, in relation to the property of her intestate, or of controlling the husband in any disposition he may chose to make of it.

As she voluntarily entered into the marriage, the effect of which, made her husband the administrator in her right, his disposition of the property is treated as her own, and the legal consequences of his acts in relation to the property, are the same to her, as if she had not been a feme covert, and the same acts had been done by herself. As she survived her husband, the rights of the administration survived to her; but she can avoid no act which he did, upon the ground that it was done without her knowledge, or against her consent.

If the sale were made without authority, it was a. wilful breach of trust in the administratrix and her husband, for which the creditors and distributees of the intestate, if there be any of either class of persons, are not without a remedy; but the administratrix has no rightt to maintain an action to repair the devastavit.

She has converted the slave to her own use, and for that injury to the persons who may be beneficially enti-tied to the property of her intestate, she is responsible as administratrix; and there is no principle which enables her to avoid the responsibility, by recovering the slave, against a sale that must be treated as her own. Wp know no case, in which a trustee, who had converted the property he held in trust, has been allowed to recover it of his vendee.

The object of the act of South Carolina, which is a part of the evidence in this case, was the tection of creditors and legatees or distributees, against private sales of the property. Such sales might be made in many cases, at prices greatly less than the value of the property, and where the excess of the value over the price accounted for, might be divided between personal representatives and their vendees, and the classes of persons now protected by the act, would be unable to prove the fraud and avoid the sales. The act was made to increase the facility of avoiding frauds.

The protection intended by it, is for the classes of persons which have been mentioned, against personal representatives and their vendees; and not for such representatives against their own wrongful acts. The case of a personal representative, who attempts to avoid his unauthorized sale, is not within the mischief, for which the act intended a remedy, and such a representative is not entitled to the remedy. The remedy given by every act, like the one in this case, is always limited to the mischiefs, the act was intended to prevent. ' It has been decided, that

an act which declared every gift, or conveyance of land, and every other contract made' to defraud creditors and subsequent purchasers, utterly void, did not enable a donor or grantor, to avoid his fraudulent gifts, or his conveyances. The judgment is reversed, and the cause remanded. COLLIER,. J. not sitting.- 1 Wm’s Ex. 408— 2 Ib. 632, 633, 634. 2 Wm’s Ex. 632, 633, 1. Wm's Ex. 403— 2 Ib. 613, 1129, 1130. 1 Ham. R. 469. Ohio Con. R. 207. 1 Stew’ts R. 278. 18 John’s R. 515.