By the Court.
Warner, J.
delivering the opinion.
*99Three questions are made by the record, for our consideration and judgment, in this case'.
[1.] 1st. Whether the motion to dismiss the appeal, entered under the authority of the warrant of attorney, was properly overruled by the Court below.
2d. Whether the suit abated, by the death of Rose Demere ; and—
3d. Were the negroes levied upon, in the possession of one of the legatees under the will, with the assent of the executors, subject to be first taken, in satisfaction of the decree made against the executors, as stated in the record ?
The motion to dismiss the appeal was, in our judgment, properly overruled by the Court below. The appeal was entered before the warrant of attorney was procured from Mitchell, authorizing Mr. Cohen to act in the premises. Time was given by the Court, in accordance with the third Common Law rule of practice, to file the warrant of attorney, which was done within the time allowed. In the warrant of attorney, Mr. 'Cohen is expressly authorized to enter an appeal in the case, from the verdict rendered by the Petit Jury, and the principal expressly ratifies and confirms all that his said attorney has done, or may hereafter do in his name in the premises, without incurring costs to him. It is objected that the qualification as to the costs, in the warrant of attorney executed by Mitchell, renders the appeal entered by his attorney, Mr. Cohen, before the execution of the warrant by him, void, inasmuch as the appeal could not be entered, without the payment of costs. The appeal, however, had been already entered, when the warrant of attorney was executed, and by its express language, Mitchell ratifies and confirms what his attorney has done in his name, in the premises. One of the legal consequences which attach, on the entering an appeal, is the payment of costs. We cannot suppose, by any fair construction of this warrant of attorney, that it was the intention of Mitchell to authorize his attorney to do an act, and annex a condition in the authority given him, which would defeat its accomplishment. The construction which we give to the warrant of attorney is, that Mitchell intended to confirm and ratify the appeal entered in the case, by Mr. Cohen, his attorney, withoutincurringany other or greater amount of costs, than such as was legally incident to entering the appeal. Whatever may have been his intention, *100we think that inasmuch as the payment of costs is a necessary and legal incident to the entering the appeal, and having expressly ratified and confirmed the act of his attorney, in entering it, he would in law be bound for the legal costs of the appeal, notwithstanding the qualification in the warrant of attorney.
[2.] Did the suit abate in the Court below, by the death of Rose Demere ? In Barker vs. Bethune, (3 Kelly, 159,) we held, that on the death of the usee of the plaintiff in execution in a claim case, the suit abated. But it is said that the decedent in this case, being a free person of color, does not come within the principle of the decision in Barker vs. Bethune, for the reason, no administration can be granted on her estate. So far as we know, this is a new question in the Courts of this State In the case of Cooper and Worsham vs. The Mayor and Aldermen of Savannah, (4 Ga. R. 72,) we held that free persons of color were not citizens, as contemplated by our Constitution and Laws ; that they had no political rights, and had always been regarded as our wards. By the Act of 22d December, 1819, free persons of color are authorized to hold property, and their descendants to inherit it after their death. Prince, 799. By the Act of 1829, they may sue and be sued in our Courts, by their next friend or guardian. Prince, 802. It is said, if administration may be granted, on their estates, then, the rules of granting administration under our laws, must be extended to them ; and the next of kindred of the decedent would be entitled to it, and thus they would exercise political rights, by holding the office of administrator. Viewing this class of our population as wards, and entitled to our protection, we think administration may be granted on their estates, without doing violence to our laws and institutions, or the declared policy thereof. We place them on the same footing with infants, with regard to administration. If an infant be the next of kindred to the deceased intestate, and thus entitled to the administration, it will be granted to his guardian, durante minore estate. 1 Williams’ Ex’rs, 295. So, upon the death of a free person of color owning property, his guardian would be entitled to administration on his estate, and not the next of kindred, as the argument supposes, for the reason that a free person of color has not the legal capacity to be an administrator in this State. The right of administration on their estate, would .seem to follow as a necessary legal consequence, from the right *101of their descendants to inherit their property after their death. In case of a contest for the administration, the guardian of the next of kindred to the deceased, would be entitled to it; if no guardian, then, such discreet white citizen whom the Court of Ordinary might think proper to appoint. By granting administration on their estates, the rights of this class of our population will be much better protected, as well as the rights of their creditors, and no injury result to the community. Their estates will be in the hands of the responsible officers of the law, who will be bound to make a just and equal distribution thereof, after the payment of debts, to the next of kindred, who may be entitled to it as their descendants. We are therefore of the opinion that the suit in the Court below abated on the death of Rose Demere, and that administration should be taken out on her estate.
[3.] Is the property in the possession of the legatee, subject to the execution, according to the facts exhibited by the record 1 The negroes had been distributed to Joseph Demere, the legatee, by the executors of Raymond Demere, and had been in his possession, and those claiming under him, for several years, with the assent of the executors. The decree had against the executors, it is declared, shail be a lien upon, and bind the whole estate of the testator, Raymond Demere. The legatee, whose property is now sought to be sold, in satisfaction of the decree, was no party to the suit in which it was rendered. The decree is against the executors alone. It is insisted by the plaintiff in execution, that inasmuch as the decree is a lien upon, and binds the whole estate of the testator, that the negroes in the hands of the legatee, distributed to him as a part of the testator’s estate, are subject to be seized and sold, in satisfaction thereof.
The question made by the record before us, is not solely as to whether the decree binds the whole estate of the testator, for the payment of the complainants’ legacies, but it is as to what portion of that estate shall first be applied to the payment of that decree. The complainants in the decree are not creditors, but they are voluntary legatees, under the will of the testator. It was the duty of the executors to have retained in their hands a sufficient portion of the assets of the estate of their testator, to satisfy the legacies of the complainants in the decree, when they made distribution to the other legatees, and in the absence of all proof to the contrary, we are bound to presume they did so retain. The *102bill on which the decree was rendered, was filed by the complainants, against the executors of the testator, for an account and payment of thoir legacies, out of the assets of the testator, in their hands. The executors have not insisted upon the plea of plene administravit, in their answers, and a general decree having been rendered against them, on a bill to account and admit assets, must be considered as establishing the fact that they had, at the time of the rendition of the decree, a sufficiency of the assets of the testator in their hands, to satisfy and pay it. Erving vs. Peters, 3 Term R. 685. Ramsden vs. Jackson, 1 Atkyns R. 294.
The decree against the executors being an admission that they have in their hands a sufficiency of the assets of the testator, to satisfy and pay it, shall the execution be levied upon the property of the testator, in the hands of the legatee, or shall it be satisfied out of the testator’s estate, remaining in the hands of the executors, which has not been distributed? It is our judgment that the execution issued, to enforce the decree made against the executors alone, should be satisfied out of the assets of the testator, in the hands of the executors, and not out of that portion of the testator’s estate, distributed to the legatee, the more especially when such legatee was no party to that decree. We do not desire to be understood as intimating an opinion that the legatee would be a necessary party to a bill, like the one upon which this decree is founded, it being simply a bill on behalf of the complainants, against the executors, to enforce the payment of their legacies, out of the assets of the testator, in their hands. But when Riereis a deficiency of assets, to pay all the legatees, and there is to be an abatement of the several legacies under the will, in favor of a particular legatee, who claims not to have received his due proportion of the assets, and those to whom distribution has been made by the executors, are required to refund a portion of their legacies, such legatees as are required to refund, ought to be made parties, because their interest is affected by the decree. Story’s Eq. Pl. 184, sec. 203. Egberts vs. Wood, 3 Paige’s Ch. R. 520. In Luffton vs. Luffton, (2 Johns. Ch. R. 614,) it was held, that if an executor pays one legatee, and there is after-wards a deficiency of assets to pay the others, the legatee so paid, must refund a proportionable part. But if the deficiency of assets has been occasioned by the waste of the executor, the legatee who is paid nmy retain the advantage he has gained -by his le*103gal diligence, as against his co-legatees, but not against a creditor. In the case before us, there is no evidence of waste by the executors ; but so far as the record shows, the executors have now in their hands assets of the testator sufficient to pay the .decree rendered in favor of the complainants, who are co-legatees with Joseph Demere, under the will. It does not even appear there is any deficiency in the assets, to pay all the legatees. On what principle then, can the property of the legatee be seized and sold, in satisfaction of a decree, obtained by one co-legatee for his legacy, against the executors alone, who admit they have in their hands sufficient assets of the testator to pay it ? The decree undoubtedly binds the whole estate of the testator, but what portion of that estate shall first be appropriated to its payment, is the question 1 "We are of the opinion, that as there is no deficiency of assets apparent on the face of the record, for the payment of all the legacies, and that Joseph Demere having received his distributive share, as a legatee under the will, with the assent of the executors, such distributive share is not liable to be seized and sold, in satisfaction of a decree rendered against the executors, in a suit in which the legatee was not a party, when it is admitted by the executors they have in their hands sufficient assets to pay it. The assets of the testator, in the hands of his executors, are first liable for the payment of the decree. Let the judgment' of the. Court below be reversed.