#### Adm’r of Cross *v.*Terlington.

Case agreed from Sampson County.

A, b-ing’the next kin of B, conveys the personal property of which. B. died possessed, to C, who takes out letters of administration on the estate of B. and afterwards procures tile conveyance tobe proved and registered. A. brings an action of trover against C. for the property, alleging that the conveyance had been fraudulently procured. Upon the trial, the Jury find that the conveyance had been fraudulently procured, and is void : but G. insists that A, having brought an action at Law, must shew a legal title, and this can be done only by shewing the assent of C, that he should have the property ; for until this assent be given, the legal title is in C. as administrator. Held, that C. having recognized the title of A. before administration granted, by accepting the conveyance, and having recognized it after administration granted, by procuring the conveyance to be proved and registered, he has thereby acknowledged A’s right, and given such assont as vests the legal title in A.

An administrator cannot bring trover for a chattel, after his consent that Defendant shall have it, before administration granted.

This was an action of trover for a number of negroes, mentioned in the Plaintiff’s declaration. On the trial, the following facts appeared in evidence.

Laban Taylo died in the year 1800, possessed of the aforesaid negroes, intestate, and without issue, and without brothers, or sisters, or the children of *such;*leaving no father, but a mother, who became entitled to the ne-groes in question. In January, 1804, and before any administration was taken out upon the estate of Laban Taylo, Abigail Taylo, his mother, conveyed to Phelicia TerSington, wife of the Defendant, the aforesaid negroes, by an instrument of writing, in the following words., to-wit:

“STATE OE NOBTH-CAROLINA, ?

s-ocpsost cororrr. *$*

“ Know all men by these presents, that, whereas my. son Laban Taylo, Esq. late of the county of Sampson, deceased, hath lately died intestate, being possessed, at the time of his death, of very considera*7ble personal estate, consisting of sundry negro slaves, to-wit: Moses, ’Washington, John, Daniel, Nan, and her two children; Annes; and her child ; also a considerable stock of different kinds, household furniture, anil other chattels; and whereas, although no administration has yet been granted of the goods and chattels of which the said Laban Taylo was possessed at the time of his decease, nevertheless, for, and in consideration of, the natural love and affection Í have towards my beloved sister Phelicia Terlington, wife of Southey Terlington, and in consideration also of the sum of five shillings, by the said Phelicia to me in hand paid before the ensealing of these presents, 1 have granted, bargained, and set over, and by these presents do grant, bargain, and set over, unto the said Phelicia Terlington, all and singular, the persona] property aforesaid, and all and singular, all and every personal property of every kind and nature whatsoever, of which the said Laban Taylo died possessed, and to which I am or "may be entitled, under the several acts of Assembly of the State aforesaid, for the distribution of intestate estates : and this deed 1 am actuated to execute, from a belief that it will tend to the true benefit oí myselfj and of those whom the laws of God and my country have decreed should benefit by my properly. Witness my hand and'seal, this 31st January, 1804.

her

ABIGAIL M TAYLO,* (seal.) mark.

“ Signed, sealed, and delivered, in presence of

“ Jonathan Fit van,

“Joshua Bass.

, “Sampson County — August Term, 1804. Then was the withiu proven in open Court, by the oath of Joshua Bass. Ordered, &.C.— fiardy Holmes, Clerk.” .

It was in evidence that the said Southey Terlington procured the above recited conveyance from said Abigail Taylo, and was present when she executed it. In February, 1804, letters of administration upon the estate of Laban Taylo, were granted to the-said Phelicia Tcr-lington ; and shortly after this, the above named Abigail Taylo, intermarried with Jonathan Cross, who after-wards died ,* and the present Plq|htiff administered upon bis estate. The Jury found that the negroes had so been in the possession of Jonathan Cross and his wife, during the coverture, as to enable him, in his own name, or Ms administrator after his death, to prosecute and main*8tain a suit 5 and the Jury further found, that the above recited deed of conveyance was void, having been obtained by fraud and misrepresentation j and gave a ver-¿jjct f0,. the. Plaintiff.

There was no evidence of any assent on the part of the administratrix ofJLaban Taylo, that Jonathan Cross, or his wife, should take the negroes, so as to vest a *legal right*in them, or either of them, except what appeared upon the above recited deed of gift; and the question reserved for the opinion of the Supreme Court was, Whether the before recited deed be not such evidence of assent on the part of the Defendant and his wife, that , the legal interest in the negroes vested in Abigail Taylo: Tiiat after administration, the Defendant cannot retract and claijn the property as administratrix, upon the ground that no assent had been given ?

*Jocelyn*for Plaintiff 5 *Sampson*for Defendant.

*Jocelyn*for the Plaintiff.

The question presented to the Court for its opinion, is, Whether there has been such an assent on the part of the administratrix of Laban Taylo, as to vest the legal estate in Mrs. Cross ?'

It is true, the deed of conveyance was delivered before the Defendant’s wife obtained letters of administration. Had she administered previous to this transaction, it is believed, no doubt could remain upon the subject.

If an executor *purchase*the legacy from the legatee, or even *offer*him money for it, this amounts to an assent— *Marlin’s*(Toller’s) *Ex’rs, page*201, *and the authorities in-the margin.*Mrs. Terlington received the deed of conveyance on the last day of January, *1804;*by this she admitted the property to be in Mrs. Cross, and assented to her possession. A-|pv days afterwards she administered. Did she, after administration, do any act, which, in law amounted to an assent ? It is believed she did. For after administration she acted upon the deed in such a manner as to prove that she still considered the no-*9groes in Mrs. Cross’s possession, and that she had assented to such possession $ for, six. months after administration, (see the deed,) in August, 1804, she applied to Court and liad the deed proved and recorded; and it is believed, that upon the principle of implied assent, which the law recognises, she as completely, gave this assent, after administration, by relying upon the validity of this ■onveyance, and proceeding to act upon it, as if she had taken the deed after administration.

And it is to be observed, that this instrument is not a mere release, which might be considered as surrendering up a doubtful claim *;*but it is a complete deed of bargain and sale, for a good and valuable consideration, in which the administratrix of Laban Taylo unequivocally acknowledges the property and legal estate to be in Mrs. Cross. And the Plaintiff cannot, without some difficulty, be persuaded that, after this admission and this assent, the Defendant should be permitted to avail himself of a mere technical objection, and retain the property for the administratrix, when, after administration, she relied and acted upon a deed, which, upon every principle, is evidence of an assent.

It is true, that the next of kin cannot take to himself a distributive share without the assent of the administrator, because the administrator is not compelled to deliver it up$ he is entitled to retain, unless a bond is given as a security against future claims. Rut if the administrator does assent without bond and security, his legal remedy is gone, and the next of kin will hold the property, not only against him, but also against creditors, except in equity.

In this case, it is contended, that such assent was given, by implication of law, without requiring either bond or security.

It is further to be remarked, that the question is' not, whether Mrs. Cross had possession of the negroes during coverture, so as to vest a right in .Tonathau Cross, *10her husband”; because that is settled by the Jury, who foun(] expressly, that she was so *possessed;*but, whether an express or implied assent had been given. '

Locke, Judge,

delivered the opinion of the Court:

It is true, that a legatee or person entitled to a distributive share, cannot legally ¡*pt possession thereof without the assent of the executor or administrator, either express or implied ; but slight declarations of the executor or administrator, as well as many acts, will in Law, amount to such assent. In 1 *Com. Dig.*342, (C. C.) it is said, if an executor take a grant, lease, &c, from the legatee of the thing or term bequeathed, it will amount to an assenl. To this effect also is 10 *Co. 52-6*— Office *of Executors,*322-3. Or if he offer money to the legatee for the purchase, dr send another to the legatee to purchase it of him — 1 *Com. Dig.*342. These and many other acts of the executor will amount to an assent.

Tiiis case states, that Abigail Taylo, the person by law entitled to the estate of Laban Taylo, deceased, did execute a deed to Phelicia Terlington for the negroes in question ; but that at the time said deed was executed, no letters of administration had been granted, and that afterwards, the said Phelicia obtained letters of administration on said estate. The authorities above recited, Would be sufficient to shew the assent of the administra-trix, and to vest the property in the person entitled to the distributive share of said estate, if Phelicia, at the time of taking the deed, had been the administratrix. But it is said she was not, and of course, that her attempt to purchase and acquire title by this deed, ought not to hind the administratrix. *Whitehall*v. *Squire,*(1 *Salk.*296,) is a case where a person, before administration granted, agreed that the Defendant being in possession of a horse, belonging to the estate of the deceased might keep him, in satisfaction of funeral charges $ and afterwards having taken out administration, he *11brought an action of trover to recover the horse. The Court held that he was bound by his agreements and judgment, was rendered against the administrator by two of the Judges. It is true, a very learned Judge thought otherwise, and on this case, differed from his brethren. If then, this case should be considered as Law, it is decisive. of this question ; not. that there was any express agreement on the part of Phelicia Terlington that Abigail Taylo should retain this property as her own $ but because her receiving a deed of bargain and sale for a valuable consideration, was at once an admission and acknowledgment on her part* that Abigail Taylo was the true owner, and competent to convey the negroes in question. It is unnecessary to decide this case merely on this ground, in as much as Phelicia Terrington, after letters of administration were granted to her, to wit, in August, lb(J4, had this deed proved in the County Court of Sampson. If as administratrix, and against this deed, she intended to claim this property, why have the deed proved and *recorded!*it would strengthen the evidence against her claim. If she intended to claim under'the deed, then probate thereof in the County Court was necessary to give to it validity. It may therefore be fairly inferred from this act, that she admitted and believed the right of this property to have been once in Abigail Taylo ; and by recording the .deed, intended to confirm that right, and make her title under the deed good and valid. Is not this equivalent to obtaining the deed after administration granted ? Or at least equal to sending a person to purchase the legacy from the legatee, which, as before mentioned, amounts to an assent ? It is the opinion of the Court, that in this case there has been such an implied assent, as to vest the property in Abigail Taylo, and that judgment .ought to he rendered W.for the Plaintiff.