#### SARAH EDNEY *vs.*WILLIAM BRYSON.

An Executor may lawfully assent to a specific legacy before the debts of the estate are paid. .

The assent of an executor to a specific legacy may, under circumstances, be legitimately implied.

ActioN of TROVER, for the conversion of a slave,,tried before his Honor, Judge SauNdees, at the Spring Term, 1855, of Henderson Superior Court.

The plaintiff claimed title to the slave in question, under the will of Asa Edney, by which, it was given to plaintiff for life, and, after her death, to be sold by the executor, and the proceeds divided among his next of kin. The testator died in the spring of 1842, and the will being caveated, was not admitted to probate till the spring of 1844. Immediately after the death of the testator, the plaintiff was impossession. of the slave, claiming him under the will, and exercising acts of ownership over him (sometimes hiring him out) up to the levy in 1849, without any claim by the executory to wit, for about seven years.

The defendant claims under a sale, by virtue of a judgment and execution, against the executor for a debt of the testator. The execution was levied in the fall of the year 1849, and the sale made shortly thereafter.

It was insisted on behalf of the' defendant, that it was not *366competent for the executor to assent to legacies before the debts were paid.

Again: that the executor had not assented to the legacy. And that, at any fate, the plaintiff was only entitled to damages for the conversion of the life estate.

The Court charged the j ury that if the executor had assented to the bequest, the title of the plaintiff was established, and she was entitled to recover, notwithstanding the existence of unsatisfied debts at the time of the> assent, and he left it to the jury upon the evidence, whether there was such an assent. That the measure of damages would be the value of the plaintiff’s life estate. Defendant excepted. Yerdict for plaintiff and "appeal.

Baxter, for .plaintiff.

*N. W Woodfin*and *Bynum,*for defendant. .

Battle, J.

An attentive exámination, aided by the argument of counsel, has not enabled us to discover any error in the bill of exceptions, of which the defendants have any just cause of complaint. An executor may, if he think proper, assent to a specific legacy before he has paid the debts of his testator, of which the case of *Allston*v. Foster, 1 Dev. Eq. 337, may be cited as an instance:

There can be no doubt that the assent of an executor to a specific legacy “may be legitimately implied, as well as expressly proved *Cheshire*v. *Cheshire,*2. Dev. and Bat. Rep. 254. And the facts proved in this case were certainly proper to be left to the jury for that purpose; *White*v. *White,*4 Dev. and Bat. Rep. 401. Whether the testimony was fully sufficient to justify the verdict, we have no right to inquire. If it were not, the Judge in the Court below, might have granted a new trial: but that is a matter of discretion in him, with which we cannot interfere.

Upon the question of damages, the charge of the Court seems to us to be subtantially the same as was prayed by the defendants, and of course they cannot complain of it.

Feb CueiaM. Judgment affirmed.