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.
ciples, but by the express letter of the statute made in sup-
pression of such transactions, to refuse its aid to a party
claiming under such circumstances. The court is therefore
of opinion, that the said decree of the Court of Chancery is
crroneous in giving the slaves in controversy to the appellee;
and that the bill, as to them, ought to have been dismissed ;
and that, in taking the accounts, under this view of the case,
the representatives of the said Frances Daniel would be pro-
perly chargeable, out of her share of the residuum of her
deceased husband's estate, with fifty pounds one shilling,
the price of the said slaves, and interest thereon. But, should
it appear to the said Court of Chancery, (as one witness
says the said Frances confessed was the fact,) that, she be-
ing unable to pay, or give security for the price of the said
slaves, the intestate of the appellant agreed to take the pure
chase on himself, and to give her the use of them during
her life, then he would be a bona fide purchaser thereof, for
a valuable consideration ; and his representatives would be

l
chargeable, in the accounts to be taken, with the said price
and interest.

Therefore, it is decreed and ordered, that the said de-
cree, so far as it gives the slaves in controversy, with their
increase, value, and hires, to the appellee, and directs the
bond, or deed, to be cancelled, be reversed and annulled;
that the bill, so far as it claims the said slaves, be dismiss.
cd; and that the appellee pay to the appellant his costs by
him expended in the prosecution of his appeal aforesaid
here, and it is ordered that the cause be remanded to the
said Court of Chancery, to have the proper parties brought
before that court, and the necessary accounts taken, to ascer.
tain the residuum of the estate of George Daniel, deceased,
pursuant to the foregoing principles, in order to a final den

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

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
Judith Townes, (who is the female plaintiff,) the court was
on the whole, therefore of opinion, that the evidence so ten.
dered by the plaintiffs was inadmissible, and, before such
could be admitted, they must first prove a legal title in them.
selves to maintain the action.” To this opinion the plain-
tiffs filed a second bill of exceptions.

The plaintiffs farther offered to prove, by the executrix of
William M. Booker, who died in the year 1802, that, about
one month after his death, she had a conversation with the
defendant's intestate, in which the latter observed that the
will of said Booker was a just one, but that he thought the
negroes given by it to his daughter, the plaintiff Judith,
had as well remain in his possession for the benefit of his
daughter; to which the said executrix assented; and that
the defendant's said intestate had held said slaves, on ac-
count of that conversation, till his death in 1810; “but the
court refused to suffer such evidence to go before the jury,
for the reasons exhibited in the second bill of exceptions,
and because, moreover, the court thought the executrix of
William M. Booker was an incompetent witness to prove a
title to the slaves, in her testator, or in his legatee.” The
plaintiffs thereupon filed a third bill of exceptions.

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
will of William M. Booker, deceased.

rity, is void

Argued Thurs.
day, January Monroe, Executor of Jones against James.
20th, 1814.
1. A sale of a

IN this case, (which was an action of detinue in behalf of
slave belong the appellant against the appellee,) the following case was
ing to the es-
tate of a testa- agreed by the parties ; viz. that the negro woman slave in
tor, by a per- the declaration mentioned, was the property of Joseph Jones,
son named as
one of the ex- senior, deceased, at the time of his decease, and subject to
ecutors, but
who, at the

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.
deceased ; that the negro slave in the declaration mention-
ed, is in the defendant's possession, and was so at the time of
institution of the suit; and that demand of her was duly
made before said institution.
The following clause in the will related to the subject

of
the present controversy : “I give and devise unto my son
Joseph Jones, and his heirs and assigns, all my estate real
and personal. In case he shall die before he arrives to law-
ful age, or, being of lawful age, shall die without a child or
children to inherit the estate hereby given to him, it is my
will that the same shall, after his death, be divided between

: