#### BOOKER T. LILLARD *vs.*JOHN M. REYNOLDS.

June 1843

Where a testator bequeathed as follows : *“*I lend to my daughter B. G. one negro woman and her increase that she may hereafter have,” *held*that this bequest was not void for uncertainty, but that the legatee, in order to identify the woman, might show that the testator had bequeathed all the negro women he had, except one, specifically by name to other legatees, and *held*that this one, not named in the will, passed under this bequest.

Where one, who claimed a specific legacy, was permitted by the executor to take it into possession, upon an agreement that if it should be decided he was not entitled to it, it should be returned to the executor — . *Held*that this was a sufficient assent to the legacy, it being afterwards determined that the claimant was entitled under the will to the legacy claimed. The cases of *Covington*v *McEniire,*2 Ired. Eq. 316, and *Swain*v *Rascoe?*3 Ired. Rep. 200, cited and approved.

Appeal from the Superior Court of Law of Rockingham county, at Spring Term, 1843, his Honor Judge Battle presiding.

This was an action of detinue to recover a slave named Julina. The plaintiff claimed title under the following *367clause of the will of Daniel Ellington, *“*I lend to my cFaugh-ter Betsey S. Guerant, one negro woman and her increase that she may hereafter have, one negro girl named Jinny,. during her life, and after her death, I give them and their increase to be equally divided amongst the heirs of her body lawfully begotten.” It was admitted by the parties, that the slave in controversy is one of the children of a slave by the name of Tabby — that Tabby was the daughter of a woman by the name of Sylvia, and was born between the making of the will and the death of the testator, Daniel Ellington— that the testator owned the woman Sylvia at the time of making his will, and up to his death. It was further admitted ' that the plaintiff is entitled, as one of the children of Bet-sey S. Guerant, whatever that interest may be, and,’if entitled to recover, the suit is properly brought. The defendant admitted possession of the slave, claiming under a purchase at a sale under an execution against Thos. P. Guerant, husband of the said Betsey, which issued in February, 1841. The plaintiff proved that Daniel Ellington made his will at the time it bears date, and died about the first of November, 1813; that his will was proved at Rockingham County Court, November Term, 1813, when his executor, John Ellington, qualified, and that the slave Tabby was born on the 2Sth‘ of April, 1811. • It was also proved that Betsey S. Guerant died in 1838. The defendant insisted that the bequest was void for uncertainty ; that the limitation over was too remote, and that the same was barred by a sale of negro slave Tabby, made by the executor, John Ellington, to Thomas P. Guerant, on the 20th day of October, 1814. The plaintiff proposed to shew by parol, that the negro woman Sylvia, though not named in the will, was the slave intended to pass to Betsey S. Guerant under said testator’s will, by shewing the condition of the testator’s estate at the time -of his death. To the introduction of this evidence the defendant objected, but the court ruled it to be admissible. The plaintiff then introduced as a witness the said Thomas P. (Guerant, the court overruling an objection to his competency) who testified, that, with the consent of the executor, *368he took possesion of the negro girl Sylvia and her child Tabby> a short time after the testator’s death, and kept possession-of the slave Tabby up to the death of his wife Betsey, in ^ggg — tjjat he had had possession of Sylvia in- the lifetime' of the testator, but that he returned her to the testator some two years before his death and received another slave, Yiolet, mentioned in the will, in her stead — that this was done because Sylvia commenced breeding — that Yiolet was in his possession at the testator’s death, and that Sylvia and her child Tabby were the only slaves owned by the testator at his death, which were not bequeathed by name in his will. This witness, on cross-examination, testified that it was denied by one of the legatees that he could take the slave Tabby under the will — that whether there was any dispute about her, when he first took possession of her, he did not recollect, or whether he took possession under any special agreement he did not recollect — but he did recollect that his right to this negro Tabby was disputed- after he got possession — that, after the assent above spoken of, he and the executor came to an agreement that he might keep possession of Tabby until the opinion of certain counsel could be had — that considerable time elapsed before the opinion was had — that they, under the advice of counsel, concluded that, to satisfy the' other legatees claiming an interest in Tabby, the executor should sell her at public auction — that, *before the*sale, he came to a private understanding with all the nine legatees except one, Paschal Ellington, that he should have their shares at the sum of ten dollars each — that the slave was advertised, and he and several persons bid — that the executor bid for him at his request, and the slave was knocked off to him at the sum. of $136 50;- but that it was- then mentioned and declared by the executor that he bought for the witness, and the executor so returned it in his account ot sales — that this sale was in October, 1814, when the executor also sold some small articles of personal property belonging to the estate — that he, the witness, paid all the legatees,except P. Ellington, ten dollars each, and they gave to the executor their receipts in full for their share of the purchase *369money — that he also gave a receipt to the executor for his share — but that he paid the amount of the purchase money due to P. Ellington to the executor, $15 16, who paid it and took Paschal’s receipt therefor. This witness also proved, that after his wife’s death he sold Tabby to his son John, one of the tenants in remainder — that he did so, under the belief that he had a right — that John sold her to another, but, when the other children put up their claim John got her back and had her divided with the other slaves, the issue of Sylvia. The plaintiff also read the inventory of the executor, in which, among other things, he says “one negro girl named Tabby, in the possession of Thomas P. Guerant, which I have a bond from said Guerant to deliver me the said negro, provided said Tabby does not belong to said Guerant.”

For the defendant Paschal Elliott testified, that shortly after the testator’s death all the legatees were present, when the testator’s will was opened — that he disputed Guerant’s right to take Tabby under the will — that Guerant took the child Tabby home with the mother Sylvia some time after the testator’s death, whether before or after the will was proved he did not recollect, under an agreement with the executor, that, if counsel declared he was not entitled to her, she was to be returned — that she was sold by the executor at auction, in October, 1814 — that several persons bid . at the sale — and she was bid off to Guerant. — that some time thereafter the executor paid him his share of the purchase money, when he gave him his receipt therefor as for a part of the estate of the testator. He also testified to similar receipts given by the other legatees, including Guerant. The defendant also shewed by an account of sales returned by the executor at November Term, 1814, that he had charged himself with the sale of a negro girl at the sum of $136 50, sold to Thomas P. Guerant.

The court instructed the jury, that if they believed all the testimony in this cause, the plaintiff was entitled to recover. There was a verdict for the plaintiff, and judgment being rendered pursuant thereto, the defendant appealed.

*370
      *Graham*and *Kerr*for the plaintiff.

*Badger*and *Morehead*for the defendant.

Gasron, J.

The plaintiff claims the negro in dispute as the issue of a female slave named Tabby, which was born after the making of the will and before tho death of Daniel Ellington, and was the child oí a negro woman named Sylvia, belonging to the said Daniel. He charges, that Tabby, by the will of Daniel Ellington, was bequeathed to his daughter, Betsey S. Guerant, for life, with remainder to her children. The bequest, under which this claim is asserted, is in these words : “ I lend to my daughter, Betsey S. Guer-ant, *one negro woman*and her increase that she may *hereafter*have, one negro girl named Jinny, during her life, and after her death, I give *them*and their increase to be equally divided among the heirs of her body.” It must be conceded, and indeed it has not been denied upon the argument here, that the words “her increase that she may *hereafter*have” do embrace such increase as might be born after the making of the will and before the death of the testator. *Covington*v *McEntire, 2*Ired. Eq. Rep. 316. Now such a disposition puts it beyond doubt, that the testator, in this bequest, contemplated to give a particular negro woman, which he *then*owned and the issue which *she thereafter*rnig-ht have. The legacy is clearly, therefore, on its face a specific legacy. But the testator has not named this negro woman, nor so described her that she can, by that description, be distinguished from any others that he owned. To remove this difficulty, the plaintiff was permitted to shew, that the plaintiff owned no negro but Sylvia, except such as were by name given away in the same will to other persons ; so that Sylvia was the *only one*which could, without violence to the will, be the subject of this bequest. And it seems to us, that this evidence was properly received. It was not offered to explain, control, alter or add to the dispositions expressed in the will, but simply to apply those dispositions to the subject matter thereof, to identify the things therein given. If the testator had owned but the one negro woman, *371there would have been no ambiguity. But the fact of his owning more raises the ambiguity, and the same kind of tes-timón y, which creates, is fit to be used for removing, ambi-guides.

The position taken on the part of the defendant in the court below, that, under the bequest in question, an absolute estate in the negroes therein mentioned passed to Betsey Guerant, has been here abandoned. According to *Swain*v *Rascoe,*3 Ired. 200, she took but an estate for life, and her children took the remainder as purchasers.

There is a remaining question. Was the judge correct in holding, that, if the evidence were credited by the jury, there had been in law such an assent on the part of Ellington’s executor as to perfect the right of Betsey Guerant’s children under the will, and entitle the plaintiff to a verdict? This question, we think, is to be answered in the affirmative.

As the law makes the executor, to the amount of the assets, answerable to every person having demands against the testator’s estate, it vests in him primarily the property in these assets. A bequest confers indeed a right on the legatee to the thing bequeathed, which is transmissible to his representatives. But until the executor consents that the bequest shall take effect, this right is inchoate, imperfect and liable to forfeiture ; and it will not entitle the legatee to the possession of the thing given. If he take possession without the executor’s assent, he makes himself liable to an action of trover or trespass. When the executor assents to the bequest, .the legal interest, which he had in the thing bequeathed, ceases, and upon its ceasing, the entire property, both legal and equitable, becomes vested in the legatee. But the consent of the executor operates only to complete and perfect the previous inchoate and imperfect right of the legatee, and, when the legatee’s - right is thus perfected, he derives his legacy from the bounty of the testator, and takes only what was given and such interest therein as was given to him by the testator. The assent of the executor is not a conveyance or transfer of his legal interest. It gives no new *372title to the legatee, and, consequently, as to all that is not given by the will to the legatee, the assent is altogether nugatory. 1 Roper on Leg. 565, 566. *Brunsley*v *Grant-*ham, Plow. 526. Now in this case the evidence is full, that Guerant, the husband of the legatee for life, took the negro woman Sylvia and her child with the consent of the executor — thet he held the negro woman with such consent as being unquestionably bequeathed to his wife — and that he held with the same consent the child Tabby, which he claimed as passing under the same bequest, but under an engagement with the executor to give up the child, if it was insisted, on the part of one of the residuary legatees, she did not pass under that bequest. That is, the executor assented to the *bequest*— but would not take upon himself the responsibility of determining between the specific legatees and the residuary legatees, whether under the bequest Tabby passed or not. If she did pass, the specific legatees had his full consent to hold her. Now the most unqualified consent on his part could *in law*amount to no more ; and therefore this assent was fully sufficient to perfect whatever inchoate rights were given by that bequest. The executor’s legal interest was, by his consent, not to stand in the way of the enjoyment of these rights.

Guerant having thus become the owner of the negro girl during his wife’s life, and her children having become the owners of the remaining interest in the said girl, he might, in any mode allowed by law for the disposition of slaves, have conveyed his temporary estate either to the executor or any other person ; but he could not convey, relinquish or-destroy, by any act of his, *their*interest. Upon the death of his wife, notwithstanding any act of his, with or without the concurrence of the executor, whose consent once given could not be retracted, their right to the possession of the slave commenced. But it is manifest upon the case, that no retraction of the executor’s assent, nor relinquishment of the rights of the legatees, was made or attempted to be made. The fórmale sale by the executor — the purchose thereat by Guerant — and the settlement by the residuary legatees were *373all parts of an arrangement, which for aught that appears was a perfectly honest arrangement, for buying in the alleged title of these- residuary legatees. If Tabby did not pass under the bequest to Betsey Guerant and her children, then the title of these legatees was good, and by this mode he would acquire it. If Tabby did pass under that bequest, he paid so much for his peace, and held by his title under that bequest.

It is the opinion of the Court that the judgment of the Superior Court should be affirmed.

Per Curiam. Judgment affirmed.