#### STEPHEN L. HOWELL *v.*R. F. JOHNSTON.

Where an administrator assented to the possession of a distributee’s supposed share of the estate, upon condition that he should thereafter give a refunding bond, which condition is not complied with, the administrator may recover the property from such distributee.

The possession of the distributee, under such circumstances, is not adverse, and the statute of limitations, for the period of such possession, will not run against the administrator.

This was an action of trover, tried before Dior, Judge, at the Spring Term, 1857, of Davie Superior Court.

Pleas, general issue, and statute of limitations.

The action was brought for the value of two slaves, Kerr and Amy. It was admitted that the slaves, in controversy, were part of the estate ofWm. F. Kelly, who died in 1848, and that as such, they come to the hands of the plaintiff, who was appointed his administrator at February court, 1849. These slaves Avere hired for the years 1849, 1850, and 1851. It appeared that at the commencement of this suit, 24th of December, 1854, the slaves were in possession of the defendant, and on the day before that, the plaintiff made a demand of *503tbe property, which,the defendant refused to deliver, claiming them as his own.

It further appeared, that at November Term, 1850, of Da-vie 'County Court, a petition was filed by all the next of kin and distributees of William F. Kelly, for a division of a large number of slaves belonging to* his estate, setting forth that they were tenants in common of the said slaves, and praying the court to appoint commissioners to make a division of them amongst the said petitioners. Commissioners were appointed, and in the month of December, 1850, they proceeded to make a division and allotment of the slaves according to the order of the court, of which they made a report to February, Term, 1851, and the distributees, with the exception of John Kelly, took charge of the slaves allotted, and hired them out for the year 1851, but as to those allotted to the said John, they continued in charge of the plaintiff, and were hired out by him for that year. Some of the next of kin being dissatisfied with the division, it was set aside by consent, and the hires for the year 1851, were accounted for to plaintiff. At November Term, 1851, of the said court, a new order was made for the division of these slaves, and the same commissioners were appointed. They again met on this business on 26th of December, 185Í, and made another division, which was reported to the ensuing term of the court, (February, 1852,) and confirmed. Whether the plaintiff was present at these meeting of the commissioners was left uncertain by the testimony. All the slaves thus allotted at the latter meeting of the commissioners, with exception of those designated for John, went into the possession of the several distributees, who gave refunding bonds according to law. Kerr, and Amy, the slaves in question, were again allotted to John Kelly, but he gave no refunding bond, nor did any one do so for him. It appeared, in evidence, that shortly after the 1st of January, 1852, the said John was living with the defendant, who kept a tavern in the town of .Uocksville, and had these slaves there •in his possession; which possession was continued at that place, either by the said John, or the defendant, until they *504were demanded by tíre plaintiff as above stated. It also appeared, in evidence, that at the time the commissioners were engaged in making the allotment, as the distributees were .about to take charge of their several lots, the plaintiff made known to them his intention to retain his right to each lot of the slaves until refunding boiftls were given, and that on the •evening of the last division, he furnished John Kelly with a bond for him to have executed with sureties.

It was further proved, that about April of 1852, when a trustee, or officer was about to sell, for debt, certain other slaves, which had been allotted to John Kelly, the plaintiff asserted his right to the slaves, and refused to let them be sold until the creditors gave satisfactory assurance that refund-' ing bonds would be executed, and that about three months afterwards, an angry altercation took place between plaintiff and defendant, because the former was insisting upon a refunding bond being executed as to Kerr, and Amju

It further appeared, that the administration of the estate of Vm. E. Kelly, was not closed, but that there remained outstanding debts against it of more than $4000, and that the other unadininistered property in the hands of the administrator, amounted only to about $400.

It was insisted by the defendant’s counsel, and the Court was called on to instruct the jury,

1st., That if the consent of the plaintiff, to the possession and division, was unconditional, he could not recover.

2ndly., That if the plaintiff consented to the possession and division, upon condition that each of the distributees should, after the division, give a refunding bond for the share allotted to him, still such a surrender of his right would enure to the benefit of all the distributees, as well those who did not give refunding bonds, as those who did, and that such conditional assent would defeat the right of the plaintiff to recover.

3rdly., That a possession and division made under such conditional assent would be a good possession as to all the dis-tributees, and that such division must be good as to all or none.

*505The Court charged the first point, as requested by the defendant.

As to the other two, lie declined giving them, but told the jury that the division might be effectual as to part of the dis-tributees, and not so as to others; and that if they should find that the plaintiff only parted with his possession on condition that each of the distributees should give a refunding bond for the share allotted to him, or her, those who complied would acquire a right of property and possession, but that as to John Kelly, who failed to comply with the condition, he would acquire no such right. The defendant excepted. Yerdict for plaintiff. Judgment and appeal.

Mitohell, for the plaintiff.

*Foydm^*for the defendant.

Nash, C. J.

Several interesting questions are presented by this case.

*First:*Can an executor give a qualified assent to a legacy?

*Secondly:*"Where there are several legatees, who are interested in a joint fund, can the executor give a conditional assent to the legacy to one, and refuse it to another 2

A bequest, properly made in a will, vests in the legatee upon the death of the testator, but he cannot take possession until the executor gives his assent. It is necessary that the legal estate should remain in the executor, as the personal property of the deceased constitutes, in general, the primary fund for the payment of the debts of the testator. 'Ey our law, the executor has two years to. settle up the estate. Upon the first point, Mr. Williams, in his 2d vol. of the Law of Ex’rs., 848, is very explicit. After expounding the law concerning the executor’s assent to a legacy,, he says: “The assent of the executor may be upon a condition precedent, as if he should tell the legatee that he will pay the legacy, provided the assets are sufficient to answer all demands; or in case of a devise of a term of years, provided the legatee will pay the rent in arrear at the testator’s death. And in either case, if *506the condition be not performed, there is no assent.” Eor this, lie cites Wentwortli’s Office of Executor, 429 — the 14th edition —a work of the highest authority.

But, to this principle, there is a reservation that the condition must be such as the executor has authority to impose; as, if he declare his assent, provided the legatee should go to some particular place, to perform some business for the executor’s personal benefit, the assent would be considered absolute. So, if the assent be on a condition subsequent; as, provided the legatee will pay the executor a certain sum annually, such condition is void, and a failure in performing it shall not divest the legatee of his legacy. So, where a man devises a term to J. S., and the executor assent that J. S. and J. W. shall have the term; here J. S. shall have the term absolutely and solely. 4 Coke’s Rep. 28. Lord CoKra, in the same place, says “ or that J. S. shall have it on condition,” it is an absolute assent. lie evidently means such a condition as is annexed to the assent to the devise to J". S. — namely, any condition which the executor has no authority to make. In this light, Mr. Williams considers the expression of Lord Ooee, for he cites him as authority for the exception which he states as to conditional assents by the executor.

Let us, now, bring our case to the test of the enactment of our law upon the subject. By the 18th sec. of the 46th chap; Rev. Statutes, it is made the duty of the executor to pay over to the legatees, or distributees of a deceased person, after the expiration of two years from the granting of the letters testamentary, all the personal estate to which they are entitled, “ such person, or persons, or some other for them, giving bond with two or more able sureties, that if any debt, &c., they shall respectively refund, and each pay his, or her, rateable part, &c.” By this act it is made the duty of the executor, before assenting to a legacy, or to legacies, to take from each legatee a refunding bond; and this is as well for the security of the executor, himself, as for that of the creditors of the deceased. The administrator here, after the commissioners had divided the negroes, as stated in the case, had a right to *507retain them in Ms possession until the several legatees, to whom they were respectively allotted, should give refunding bonds as required by law. It is stated in the case, that all the distributees complied with the condition, and received their shares of the negroes, except John Kelly, who never gave a refunding bond; and until he does so, the slaves allotted to him, still remain in the legal possession of the administrator, for he has not assénted to the distributive share, the condition not being complied with.

As to the second question: A general assent, by an executor to one of two legatees of a specific property, is an assent to both, as if a lessor for years bequeath the rent to A, and the land to B, an assent to one is an assent to both. See 2 Wm’s. •on Ex’rs:, 488; Roper on Legacies, 788. Here the distributees were tenants in common of the slaves, and while so, ail assent by the administrator, to one of the tenants, would have inured to the benefit of all. But after the division by the commissioners, the tenancy in common was severed, and each distributee acquired a right to the. slaves allotted to him, still leaving, to the administrator his right to object to any of the distributees taking possession of those allotted to him, until he had complied with the requirements of the law. It was, therefore, not in the power of the Court to give the jury the 2nd and 3rd instructions as requested by the defendant’s counsel.

The statute of limitations cannot avail the defendant; for until John Kelly complied with the condition upon which the negroes went into his possession, he was the bailee of the plaintiff, and as he lived with the defendant Johnston, the possession of Kelly was his possession.

Pee CubiaM, There is no error; and the judgment is affirmed.