#### JOHN BUFFALOE *v.*CALVIN BAUGH.

When, in a gait by legatees against the administrator with the will annexed, it was decreed, that the administrator should deliver to three of the four legatees, entitled to legacy of slaves, their respective shares, which was done, and as to the other sharo (the legatee being in parts unknown) it was decreed, that this share *‘‘*should be allotted to the administrator dtc.” “for the use” of such legatee, upon the trust declared in the will <fcc., and the administrator under this decree kept possession of the share of the slaves thus allotted, and hired them out and deposited the hires in Court; *Held*that this amounted to an assent to the said last mentioned legacy.

The case of *Kearn*v. *Kevan,*2 Ire. Eq. 34 cited and approved.

Appeal from the Superior Court of Law of Wake County, at the Fall Term 1848, his Honor Judge Dick presiding.

This was trover for a slave, which had belonged to William Andrews and of which he died possessed. The will of William Andrews was admitted to probate in 1828, and the executors having renounced, John Dunn was appointed administrator with the will annexed. Among others, there is this clause in the will: “ 4th. I lend to my son William Andrews one half of my Ruffin tract of land, also one fourth of my other property, and at his death I lend the same to his lawful heirs : I leave the same in the hands of my executors for the support of my said son William.”

In 1833 a bill was filed by one of the legatees against Dunn and the other legatees, for a settlement and division of the estate. Such proceedings were had therein, that, in 1835, all the debts having been paid, a settlement was made, and the property was divided into four parts; of which three parts were delivered to the legatees entitled thereto, and the remaining fourth part, which included the, mother of the slave sued for, continued in possession of the *202administrator, under this clause in the decree: “ The other share of the said slaves shall be allotted to John Dunn, administrator &c., for the use of the defendant William Andrews, upon the trust declared in the will of William Andrews deceased.”

William Andrews, Jun., had left the State, before the Bill was filed, ana gone to parts unknown. John Dunn hired out the slaves from year to year, and deposited the notes taken for hire in Court.

Dunn died in 1839. The plaintiff was appointed administrator *de bonis non,*with the will annexed, of WilHam Andrews, Sen., and soon thereafter commenced this action.

Upon the trial, the Court was requested to instruct the jury, that John Dunn, administrator of Wm. Andrews, Sen., bad assented to the legacy to William Andrews, Jr., and that John Dunn, after the allotment under the decree of -1835, held in trust for Wm. Andrews, Jr., and therefore the plaintiff as administrator &c., could not recover. The Judge declined *to*give this instruction, and charged the Jury, that there was *no*evidence of any assent by John Dunn, which would prevent the plaintiff from recovering in -this suit.

There was a verdict for the plaintiff and from the judgment thereon the defendant appealed.

*W. H. Haywood,*for the plaintiff.

. *McRae,*for the defendant, submitted the following argument. -

This was ati action of *trover*by the plaintiff, as administrator *de bonis non,*of Wm. Andrews, Senior, and the only ■question is, whether there.was an assent by. Dunn, administrator *cum testamento annexo,*to the legacy to himself as trustee for William Andrews, Jr., in the-will of Willia'm, ■Senior, The Court below instructed the jury, that' there *203was no evidence of any assent in the proceedings adduced in evidence, and that they had not a right to infer any assent from any proof in the case.

The office of executor devolves the duty of paying debts and discharging legacies. After the first is done, the exec-, utor has no right to withhold his assent to legacies, and to refuse to discharge them; and in case of such refusal,.a Court of Equity will compel such assent. Such assent is a matter of duty and in the absence of any evidence one way or the other, there is a presumption of assent, because the Executor shall be taken to have acted in discharge of his duty, as if the Executor die ('as was the. case here) after payment of debts. 2nd Will on Ex. 846, 7 and 851. 2nd P. Williams, 931, 32. 1st Rep. L. 572. 2nd Common L. Rep. 81.

Any expression or act showing concurrence in the bequest, nay, a small matter, will amount to an assent. Congratulations on the legacy, &c., Wood on Leg. L. Library, 364.

More especially will the- assent be presumed in the absence of evidence to the contrary, where the the executor is also a trustee under a clause of the will, for here, is a. double duty.

Now what are the facts of the case ?

There are no debts outstanding.

The executor or administrator, with the will annexed, standing on the same bottom as the executor, answers a bill calling for a settlement of other legacies. Under a decree, he surrenders the property bequeathed to the other legatees, in accordance with an allotment made by commissioners, previously appointed by the Court; only retaining the allotted share of that legatee, for whom he was trustee.

He held possession for four years under this allotment, and when he moved away appointed an agent to hold in his place.

*204He made no return from year to year of any inventory or account current.

He paid all the other legacies.

•And finally died.

. The case is precisely within that of *Kearn*v *Kevan*and others, 2 Ire. Eq., 34.

Pearson, J.

The will of William Andrews was admitted to probate in 1828, and, the executors having renounced, John Dunn was appointed adminstrator with the will annexed. Amo.ng.-others, there is this clause: “-4th. I lend to my son William Andrews one half of my Ruffin tract of land: also one fourth 'of my other property; and at his death, I.lend the,same to his lawful heirs : I leave the same in the hands of my executors for the support of my said son William.” , .

In 1833 a bill was filed by one of the legatees against Dunn and the other legatees for a settlement and division of the estate. Such proceedings were had therein, that in 1835, all the debts having been paid, a settlement was made and the property was divided into four pai'ts; of which three parts were delivered to the thi'ee legatees entitled 'thereto, and the l'emaining fourth part, which included the mother of the slave sued for, continued in possession of the administrator, under this clause in the decree: “ The other shai'e of said slaves shall be allotted to John Dunn, administrator and so on, for the use of the defendant, William • Andrews, upon the trust declared in the will of William Andi'ews, deceased.”

William Andrews, Jr., had left the State befoi-e the bill •xyas filed, and gone to parts unknown. John Dunn hired out the slaves from year to year and deposited the notes taken for the hire in Court.

Dunn died in 1839. The plaintiff was appointed administrator *de bonis*non, with the will annexed, of William Andrews, Jr., and soon thereafter commenced this suit.

*205The only question, intended to be presented to this Court, •is, whether the part bequeathed to William Andrews *was unadministered*at the death of the first administrator, so as still to be a part of the estate of the testator, and, as such vest in the plaintiff, as administrator *de bonis non.*Or whether the facts above stated show an assent by the first administrator to this legacy, the legal effect of which was to vest title in him as trustee for William Andrews, Jr.

The assent of an executor to his own legacy, as well as his assent to the legacy of another, maybeexpressed or implied. *Kearn*v. *Kevan 2*Ire. Eq. 34. doctrine is fully discussed.

Dunn expressly assented to the* lejpcieg^f the-p|rsons entitled to the other three shares, ip-aaHacwlaP-dMr^ery to them; and it is entirely clear, that, asta theummalning fourth share, there was an assent, aspbs^iTo'rlTnplieC

Our opinion is, that there was nofessf^nadrUlmstered, and the plaintiff, as administrator *de bonis non,*consequently has no title in the slave sued for.

His Honor was of opinion, that there was no evidence of an assent by the first administrator. In this there is error.

Pee CuRiam. Judgment reversed and *venire de novo.*