#### *Smith and Wife v. Townes’s Administrator.

Argued Monday, January 24th, 1814.

1. Wills — Bequest of Personalty Not in Possession of Testator.* — A specific article of personal property may he bequeathed, tho’ not in the testator’s possession at the date of his will, or at the time of his death; so that upon the assent of the executor, the legatee may sue for it in his own name.

2. Detinue — Evidence—Paroi Acknowledgments of Defendant.† — The plaintiff in detinue may adduce evidence of parole acknowledgments, by the defendant, or by the person under whom the defendant claims that the property belonged to the plaintiff; for the purpose of rebutting an alleged adverse possession.

3. Legacy — Suit for — Witness—Executor,]‡—A legatee suing for a slave specifically bequeathed, may prove by the executor (if he has no obi ection to being examined,) his assent to the legacy; but he cannot prove by him that the testator had title to the slave, and could bequeath it.

On the trial of an action of detinue for sundry slaves, instituted by the appellants against the appellee," in the Superior Court of law for Amelia County; issues being joined on the pleas of non detinet and the act of limitations ; the defendant moved the court to instruct the jury, that, where a testator bequeaths personal property to a legatee, which, at the time of his death, is out of his possession, and to which the representatives of the person then in possession now set up an adverse claim, the assent of the executor to the legacy of the said property, which executor has never possessed himself of such property, does not transfer the legal title of such property to the legatee, so as to enable him to maintain an action at law against the person in possession and claiming 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 executor, or other personal representative, of such testator, and not the legatee : which instruction was given by the court; whereupon the plaintiffs excepted, and their bill of exceptions was signed and sealed.

To support the issues joined on their part, the plaintiffs offered to prove that the defendant’s intestate, twelve months before his death, admitted that he had no title to the slaves in the declaration mentioned, and also that they were the property of the female plaintiff, then a feme sole ; but the court refused to permit such evidence to be heard, because it appeared that the pláintiffs claimed the slaves under the will of William M. Booker, (which was set forth in hasc verba) that the said testator was not in possession of the slave Rachel, therein bequeathed to Judith Townes, at the time of his death ; but that the said Rachel was then in the possession *of James Townes, the intestate of the defendant; (1) (who now sets up an adverse title thereto in his intestate ;) “and the testator’s executrix” (who is still in being) “never having had possession of the said slaves, and so never having 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 tendered by the plaintiffs was inadmissible, and, before such could be admitted, they must first prove a legal title in themselves to maintain the action.” To this opinion the plaintiffs filed a second bill of exceptions.

The plaintiffs farther offered to prove, by the executrix cf 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 *80'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 account 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.

Williams for the appellants.

Leigh for the appellee.

*Tuesday, February 8th, 1814,

*

Wills. — See monographic *note*on “Wills’’ appended to Hughes v. Hughes, 2 Munf. 209).

†

 Detinne — Evidence.—See monographic *note*on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578. The principal case was distinguished in Morris v. Lyon, 84 Va. 334, 4 S. E. Rep. 734.

‡

 Legacy — Suit for — Witness—Executor,—To the point that a legatee suing a stranger for a legacy bequeathed to him may prove by the executor (if he has no obi ection to being examined) his assent to the legacy, the principal case was cited in | Frazer v. Bevill, 11 Gratt. 13. See generally, mono-graphic *note*on "Legacies and Devises” appended to Early v. Early, Gilm. 124.

(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. — Note in Original Edition.

the president pronounced the following opinion of this court.

Where a specific thing is bequeathed, the assent of the executor vests the property in the legatee, and he may have an action at common law for the recovery of the legacy against a stranger, or the executor, as the case may be. (a)

It is not perceived that the circumstances relied on by the appellee in this case can render the assent of the executor less availing. It is believed to be unquestioned law, that the owner of a specific article of personal property may bequeath it by his will, although he may be out of possession at the time of his death. If he has the power of bequeathing, the property will pass by the will as in other cases, on 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 wholly 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 evidence stated in the second bill of exceptions and so much of that stated in the third, as goes to prove the assent of the ^executrix to the legacy of the slave Rachel, mentioned in the will of William M. Booker, deceased.

(a)

 Brook, Title Trespass, pl. 25; Paramour v. Yardley, Plowden 539; 4 Co. 28, b; Young v. Holmes, 1 Stra. 70; Doe v. Guy, 3 East, 120.