#### Rosannah E. Spruill and Agnes H. Spruill, by their next friend, *v.*Lais Spruill, executrix of the last will of Benjamin Spruill, dec’d.

J>Frora Edgcombe.

A. loaned certain slaves to his son-in-law B. and afterwards by his last will, gave these slaves to B’s children, then infants. B. then made his will, and bequeathed these slaves to his wife, until his children should arrive to full age, and appointed her executrix. She took possession of the slaves, and the executors of A. there assented to the legacy to B’s children. The possession of the slaves by the executrix of B. is not such an adverse possession as to prevent the assent of the executors of A. from vesting Hie legal title to the slaves in B’s children. It is not necessary that executors should have the actual possession of legacies, when they assent to them.

This was an action of detinue for slaves, and it appeared in evidence that Peter Hines, the father of Plaintiffs mother, loaned to the Plaintiffs father, soon after his marriage, the negro slaves in question. The mother died and the father married a second wife. Peter Hines *176then made bis will, and gave to the Plaintiffs the said slaves. During the life of the father, as well in the lifetime of his first wife as after his intermarriage with his second, he acknowledged the Plaintiffs title under the will of Peter Hines, of which will he had a copy. The father made his will and bequeathed the slaves to the Plaintiffs, together with some other property. In a latter clause of his will, he bequeathed as follows: *eí*I lend the whole of my property abovementioned, of every kind, to my beloved wife Lais Spruill, for the purpose of raising, clothing and educating my children, and also raising the young negroes that are, or may hereafter, be horn in my family, free from any charge hereafter to be made, against my children heretofore named, until my children arrive to lawful age or marry.” And he appointed the Defendant executrix of his will, who proved the same at August term, 1808, qualified and took upon herself the burthen of executing the same. She took possession of the property as executrix and continued in possession thereof, until the time the executors of Peter Hines, the. grandfather of the Plaintiffs, assented to the legacy, which was three months before the bringing of this suit.

It appeared further in evidence, that when the Plaintiffs demanded the slaves, immediately before the commencement of this suit, the Defendant declared her willingness to surrender them up, if the Plaintiffs would pay a rateable part of the debts of their father. The Defendant pleaded, “ non detinet, and the statute of limitations.” The Jury found a verdict for the Plaintiffs, and a rule for a new trial was obtained, upon the ground that the assent of the executors of Peter Hines, did not vest in the Plaintiffs such' a right as enabled them to sue, and that the action should have been brought in the name of the executors of Peter Hines. The rule was discharged and the Defendant appealed to this Court.

*177Ham, Judge,

delivered the opinion of the Court.— It is not necessary to enquire how far the assent ,of an execuior to a specific legacy adversely claimed by a third person having possession thereof, would enable the legatee to sue for and recover such legacy in his own name ; for it does not appear that there was an adverse possession of the legacy in question, before the assent of the executors of Peter Hines was given. The slaves wore loaned, in the first instance, to the father of the Plaintiffs, and then bequeathed to the Plaintiffs. Their right wras acknowledged by the father during his *life;*his possession, therefore, was the possession of Peter Hines during his life, and after his death, that of his executors. The father then, by his will, gave the same property to the Plaintiffs. It does not follow, that he, thereby set up a claim to it; for the property had been loaned to him, lie had been possessed of it for several years, and he might have thought that his children being of tender years, at the time of the loan, and some of them not born, might not know when they grew up, in whom the title was. He, therefore, confirmed by his will, the will of his father-in-law.

The case recites a clause in the will of the father, by which he lends the whole of his property to his wife, for the purpose of educating his children, and raising the young negroes, until the coming of age or marriage of his children. Ry this clause, nothing beneficial is given to the *wife",*it was obviously inserted for the benefit of his children. Although he does not by this clause, make his wife testamentary guardian, he seems to have had such an intent. If he had carried this intent into effect, she ’would have been entitled to the slaves, during the minority of the children, unless they had sooner married. It seems, however, to have been his wish, that she should discharge in part the duties of guardian, and she must be considered as taking possession of the property for the benefit of the children. Her *178possession of it was not adverse to their right, and therefore there was no adverse claim at or before the time the *executors*of Peter Hines assented to the legaCy. By that assent, the right of the legatees to sue in their own names was complete; a right which no after adverse claim could destroy. It is not necessary that executors should have the actual possession of legacies when they assent to them. It is sufficient if the legacies be in the possession of third persons, holding such possession under them. If, however, the Court were mistaken on this part of the case, a new trial ought not to be granted; for complete justice has been done by the ver-diet, and if a suit was to be brought in the name of the executors of Peter Hines, it would be for the use of the present Plaintiffs, and the same verdict would be rendered. Let the rule be discharged.