HALL vs. MULHOLLAN, EXECUTOR, &c., 7 La. 383

Bullard, J., delivered the opinion of the court. The plaintiff sets up title to two slaves, under a conveyance from his father, the-testator of the defendant, and procured from the District Court, an injunction, inhibiting the defendant as executor, from proceeding to sell them as belonging to the estate. The answer admits the execution of the bill of sale, which is exhibited as evidence of title, on the part of the piaintiff, but denies that it is a sale, in as much as no price is stipulated, and no delivery ever took place.

The defendant further pleads, that, the estate of Hall, is largely indebted in the State of Louisiana, and among others, to himself, who is the testamentary executor, and that there is not property enough in the state, to pay the debts due here, and the plaintiff as one of the heirs, cannot legally take out of the state, any part of the property belonging to the estate, while he has in his hands in Kentucky, a portion of it, greater in amount than any debt which the deceased owed him.

A bill of sale tucky1 an'f valid under the laws of that state, which expresses the for6 a* valuable consideration, without fixing any price, of ce_rLouisiana,6S will law^ofthepiaoe where the con-into; and being good here'as between the parties,[althoughnot made in conforofthis°statelaws A contract valid by the law of the place where it is made, as a pie,6¡s valfdevery where.

The instrument, purporting to be a sale of the slaves in question, was executed in Kentucky, while the slaves were jn ^his state and remained until his death, in the possession of . , , , the testator. 1 he first question which the case presents is, whether that instrument is evidence of a contract of sale. It js contended, that it is not because no price is fixed, and J ' determined by the parties, on the authority of the case of Conway vs. Bourdier et al. 6 La. Reports, 346.

Tested by our we should perhaps be compelled to say, that there is wanting an essential ingredient to constitute a sale, and that it could not avail as a donation, because not passed before a uotary. But its essential character, as between the contractjng parties, is to be ascertained by reference to the laws of the ® r . , / place where the contract was entered into ; a contract valid 6y the law of the place where it is made, is valid every where. This is the general principle often recognised by this court and sanctioned by the highest authorities. 2 Kent’s Com., 264.

The effect which is to be given to contracts made abroa(j ¡n relation to our own citizens, is a distinct question. 1 It is shown by evidence in the record, that according to the laws of Kentucky, this instrument would be a valid bill of sale between the parties, and the expression “for a valuable consideration,” a sufficient enunciation of the price. We are, therefore, of opinion, that, as between the parties, it vested the title in the plaintiff. It is equally well settled, that the sale of slaves cannot have effect as relates to creditors before delivery.

In this case no delivery is pretended, and the only remaining question is, whether the defendant, either in his own right as creditor, or in his character of executor, has a right to retain the slaves in question, and sell them to pay the debts of the estate. The defendant has shown that he is a creditor of the deceased. It is clear that the property would be liable to attachment or seizure, at the suit of creditors before delivery, but it does not appear to us to follow, that a creditor would be authorised to retain possession without some right or lien acquired in virtue of judicial process.

A chirographory creditor of a deceased vendor whose estate he administers as testamentary executor, has no right to withhold property or slaves found in the succession, from the vendee by a valid title, but which have notbeen delivered, without some right or lien acquired in virtue of judicial process. The executor derives his power from the will, is primarily the representative of the deceased, and not of the creditors of the succession when it is not shown to be insolvent, and he is required to account to the heirs and not to the creditors. .

As testamentary executor, the defendant derives his authority from the will, and is primarily the representative of the testator. He doe's not, like a syndic, derive his power from the creditors of the testator, nor is it to them, that he renders his account. He gives no security, and it is to the heirs he is accountable for his administration. They can, at any time, deprive him even of the seizin given by the will, on offering him a sum sufficient to pay the legacies. Louisiana Code, 1664. The plaintiff is, himself, one of the heirs, and the defendant is sued as executor.

He alleges that the estate, so far as the property is situated in Louisiana, is insolvent, and that he has a right to retain the slaves in dispute, for the benefit of the creditors. We are not prepared to say, that if it were shown the estate is insolvent, the executor might not be considered, as so far representing the mass of the creditors, as to authorise him to resist the claim of the plaintiff. But he has not shown the insolvency of the estate. A tableau of distribution is exhibited, which has not yet been homologated, and the record does not show the amount of property.

We are not to presume insolvency in a case of this kind, and until that is shown, although it may not yet be two late for any creditor to arrest the property in the hands of the executor, he is, in our opinion, without authority, either under the will, or in his own right to defeat the conveyance to the plaintiff, and to refuse delivery. Until he shows some legal claim, he must be regarded as merely representing the testator, and his contracts are binding on his heirs and legal representatives. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.