V. Vidal. JANUARY, The answer denies the fraud and combination alleged in 1814. the bill ; and it is no where proved, except by the declaraRoane's admi- tions of the said Frances : but, if it were fully proved, a nistrator Court of Equity would be bound, not only by its own prin. l Therefore, it is decreed and ordered, that the said de- cree, egedi JANUARY, 1814. own name. che said che pure during ed. Smith and wife against Townes's administrator. Smith and wife v. Townes's adm. On the trial of an action of detinue for sundry slaves, instituted by the appellants against the appellee, in the Supe. Argued Mon. day, January rior Court of law for Amelia County ; issues being joined on 2411, 1814. the pleas of non detinet and the act of limitations; the defen 1. A specific dant moved the court to instruct the jury, that, where a testa- article of per sonal property tor bequeaths personal property to a legatee, which, at the may be be. time of his death, is out of his possession, and to which the queathed, thu’ not in the tes. representatives of the person then in possession now set up tator's posses sion at the date an adverse claim, the assent of the executor to the legacy of of his will, orat the said property, which executor has never possessed him- the time of his death ; so that self of such property, does not transfer the legal title of such upon the as. sent of the exproperty to the legatee, so as to enable him to maintain an ecutor, the leaction at law against the person in possession and claiming gatee may sue for it in his title ; and that the only person who can maintain an action at law for the recovery of the property, so out of the testator's possession, and by him specifically bequeathed, is the executiff in detinue .2. The plaintor, or other personal representative, of such testator, and may adduce c. not the legatee : which instruction was given by the court; role acknowwhereupon the plaintiffs excepted, and their bill of excep- ledgments, by the defendant, tions was signed and sealed. son To support the issues joined on their part, the plaintiffs whom the des offered to prove that the defendant's intestate, twelve months fendant claims, before his death, admitted that he had no title to the slaves perty belongin the declaration mentioned, and also that they were the ext to the plain tiff'; for the property of the female plaintiff, then a feme sole ; but the purpose of re butting an ala court refused to permit such evidence to be heard, because leged adverse it appeared that the plaintiffs claimed the slaves under the possession. will of William M. Booker, (which was set forth in hæc verba) that the said testator was not in possession of the slave Ra. sning for a chel, therein bequeathed to Judith Townes, at the time of his slave specifi . cally bequeath death; but that the said Rachel was then in the possession ed, may prove (if he has no objection to being examined,) his arsent to the legacy; but he cannot prove by him that the testator had ütle to the slave, and could bequeath it. vidence of pa or by the per said de th the that the pro 3. A legatec ascer cased by the executor ܕܐ /aܐ v. JANUARY, of James Townes, the intestate of the defendant; (1) (who 1814. now sets up an adverse title thereto in his intestate ;) and Smith and wife the testator's executrix" (who is still in being) " never hav ing had possession of the said slaves, and so never having Townes's adm. had the power of transferring a legal title to the legatee The plaintiffs farther offered to prove, by the executrix of A verdict was found, and judgment entered, for the defendant; from which the plaintiffs appealed. (1) Note. The words of the will were, "I give Judith Townes one negro woman named Rachel, now in the possession of James Townes, to her and her heirs for ever. Co. Tuesday, February 8th, 1814, the president pronounced JANUARY, 1814. the following opinion of this court. Where a specific thing is bequeathed, the assent of the Smith and wife executor vests the property in the legatee, and he may have Townes's ad. an action at common law for the recovery of the legacy ministrator. against a stranger, or the executor, as the case may be. (a) (a) Brook, Ti It is not perceived that the circumstances relied on by the tle Trespass, appellee in this case can render the assent of the executor pl. 25; Puraa mour v. Yardless availing. It is believed to be unquestioned law, that the ley, Piowden 539; 4 owner of a specific article of personal property may be- 28. b.; Young queath it by his will, although he may be out of possession Stra. 70; Doe at the time of his death. If he has the power of bequeath- v. Guy, 3 ing, the property will pass by the will as in other cases, on East, 120. the executor's giving his assent; which assent is only a perfecting act, for the security of the executor. The assent being once given, the legatee is complete owner, and may sue in his own name; upon the same principles as if he were a devisee of lands, of which the testator was out of possession at the time of his death. The Superior Court therefore erred in the instruction given as excepted to in the first bill of exceptions; and, for the same reason, also, erred in rejecting the evidence stated in the second bill of exceptions; which was, moreover, proper evidence to rebut the alleged adverse possession, by the appellee and his intestate. The said court also erred in whol. ly rejecting the evidence offered, and stated in the third bill of exceptions; it being competent to the appellants to prove by the executrix, if she had no objection to being examined, her assent to the legacy; but they could not prove by her that the testator had title to the slaves in controversy, and could bequeath the same. The judgment of the Superior Court is therefore reversed with costs, the verdict of the jury set aside, and the cause remanded, for a new trial to be had therein, on which the court is to give no such instruction as that stated in the first bill of exceptions; and (if again offered) is to admit the evi. dence stated in the second bill of exceptions, and so much of that stated in the third, as goes to prove the assent of the Въ VOL IV. executrix to the legacy of the slave Rachel, mentioned in the rity, is void Argued Thurs. IN this case, (which was an action of detinue in behalf of the disposition of his last will and testament, set forth in time of such hxc verba ; the executors appointed therein being James sale, had not qualified, and Monroe, Joseph Jones, the testator's son, and others; that afterwards the defendant bought her, for valuable consideration, from died, without having qualifi- one George Legg, who bought from Joseph Jones , jun. deed, by giving bond and secu ceased, (named one of the executors in said will,) for valua ble consideration, after the said Joseph Jones, jun. had atagainst the ex. ecutor who did tained the age of twenty-one years, and after the said will qualify; notwithstanding was duly proved and recorded; he, the said Joseph Jones, jun. such sale was now deceased, not having then, or after, qualified as execumade for valuable considerator under said will ; that no other person had qualified as tion, and at a executor of said Joseph Jones, sen. or taken out letters of adtime when there was no ministration on his estate, at the time of the sale of the said qualified exe negro woman by Joseph Jones, jun.; that the plaintiff is the cutor. only regularly qualified executor of said Joseph Jones, sen. of : |