STEELE vs. WYATT'S ADM'R, 23 Ala. 764

GIBBONS, J. The first charge of the court to the jury was, that the several orders above set out did not confer upon the administrators in chief authority to sell the slaves, and that such sale was void ; meaning, we presume, that such sale was void as against the plaintiff in the action, for as against the administrators in chief it was not void, as is shown in a subsequent charge of the court, where it states that the administrators in chief would be estopped by their sale from asserting a title in their names. Giving to the charge this

interpretation, the question is, whether the court was or was not correct in its charge.

The sale seems to have taken place in February, 1834 ; and the act under which the orders were made is as follows, to-wit: “It shall not be lawful for any executor or executors, administrator or administrators, guardian or guardians, to take the estate, or any part thereof, of any testator or intestate, at the appraised value, or to dispose of the same at private sale, except where the same is directed by the will of the testator.— But in all cases where it may be necessary to sell the whole, or any part, of the personal estate of any testator or intestate, it shall be the duty of the executor, administrator or guardian, to apply to the Orphans’ Court of their county for an order of sale, and obtaining the same, to advertise the time and place of such sale in three or more public places in the county, at least thirty days previous to the day of sale, and then and there proceed to sell the same at public sale to the highest bidder, giving at least six months credit; the purchaser giving bond with ap - proved security.”— Clay’s Dig. 223 § 13.

We say the order of sale was made under this act, because this is the only act upon the subject under which it could have been made. The term “perishable property,” in its most enlarged sense, would mean all personal, as distinguished from real property ; whilst in its most restricted sense, it would only mean such personal property as had in itself the elements of destruction or decomposition, as for instance, fruits, or such productions from the labor and ¡skill of man as are ephemeral in their existence, or evanescent and changeable in their value.

In this latter sense, it would ordinarily comprehend but very few articles belonging to an estate. If we apply to the orders of the court, on which the charge under discussion is predicated, the most enlarged sense of the term, it is clear that it did confer on the administrators all the authority necessary for the legal disposition of the property. If, on the other hand, we apply to them the most restricted sense, then it is equally clear that the order would not confer such authority.

It does not appear from the present record whether there was belonging to the estate, at tho time that the orders were made, any property that- would properly range itself under the latter of the above

definitions of the term perishable property; all that does apppear is, that all the personal property of the estate was sold, and the negro in question with the other negroes of the estate. It will be observed here, that in reference to the effects of estates, our statute has given no definition of the term perishable property ; nor is there any act authorizing the Orphans’ Court to make any order in reference to that particular species of property. The term, it is true, has received a legislative

interpretation in reference to the attachment laws of the State, and it is there said to be that “which is likely to waste, or be destroyed by keeping.” — Olay’s Digest 56 § 8 ; but whether the legislature would apply the same meaning to the term, when used in reference to the estates of deceased persons, we know not, as it has not as yet thought proper to give it any definition whatever as applied to such estates.

The term, then, as employed in the order of the court, could have no reference to any technical meaning given to it as applied to estates in the hands of personal representatives, as the term then had no legislative technical meaning, nor has it any as yet, as applied to such estates.

It is clear that, if the statutes had defined what should be considered as perishable property as applied to such estates, or even if the term was known to our law at all in a legislative technical sense, as applied to the general property of decedents, then the term, as used by the court in the order above referred to, would have to receive such statutory

interpretation. But in the absence ol any such definition, what rules of

interpretation shall we resort to in order to ascertain the meaning of the term as used by the court, or to comprehend in what sense the court making the order, and the parties acting under it, understood it? I confess I know of no better rule under such circumstances than to let the parties themselves be the interpreters, by showing what they themselves understood by it. The moment we adopt this means of ascertaining the meaning of the orders, there is no longer any mystery.

We find that under the order the administrators proceeded and sold the wholo of the personal property of the estate, precisely as if the order had been to sell the personal instead of perishable property. The order, on its face, was in all respects as if it was intended to mean the personal property generally, and to be strictly a statutory order. The only word in the whole order that prevents it from being strictly such, is that perishable is used in- ' stead of personal as a prefix to the word property.

The sale is made, and an account thereof returned to the court, according to the order ; and the account passed, and the proceedings' of the administrators sanctioned and approved, as much as it was in the power of the court so to do, precisely as if the order had been to sell the personal instead of the perishable property.— Under these circumstances, we think we are authorized to say, that such was the meaning of the order under which the sale was made.

That such was the understanding of the parties acting under the order, and of the court itself making it, wTe think clear ; and in the absence of a statutory definition of the term perishable property, as applied to the estates of decedents, by which the term has to receive a strict statutory technical meaning, we see no reason why we should not give to the order now the same

interpretation that the court making it and the parties acting under it gave it at the time that it was made.— From this view it follows, that the court erred in this charge as given to the jury, as the orders of the court under which the sale was made were ample to confer upon the administrators in chief the authority to sell the property and pass the legal title thereto. This we regard as decisive of the whole case, and therefore do not deem it necessary to consider the remaining questions raised by the record. The judgment of the court below is reversed, and the cause remanded.