#### Lovet Merritt *et ux. v.*William Windley.

An assent to a legacy by an executor, may be presumed from his holding the legacy for five years, claiming it as next of kin to the legatee, and selling it as his own.

DetiNtje, for a slave, and upon the general issue pleaded, the cause was tried before Martiw, Judge, at Beaufort, on the last Spring Circuit. The si ¡ve in dispute, was formerly the property of one *D»rms Campbell,*and upon her marriage with one *John Chapman,*was, with the rest of her estate, conveyed to one *William Worley,*in trust for her sole and separate Use, with a power to dispose thereof by any writing in *400the nature of a last will, attested in a prescribed manner. Iu the year 1822, *Mrs. Chapman*duly made an appointment, and thereby gave the slave in dispute, to the wife of the plaintiff; she appointed *Worley*executor of her will, who proved it. In 1827, *Worley*conveyed this slaveto a trustee, to secure the payment of his own debts. On the trial, to prove an assent to the legacy by *Worley,*the plaintiff offered testimony that *Worley*had written to him, at his residence in Georgia, to come after the slave; on the other side, proof was made to repel this assent, and especially, that the letter was written after the conveyance by *Worley*to secure his creditors, and that he had, when he made that conveyance, declared that the slave was his, as the appointee, and all her family had been killed by the Indians, and that he was her next of kin. After the conveyance made by *Worley,*to secure his debts, he had sold the slave to the defendant, and he being released, swore that he never had assented to the legacy to the plaintiff’s wife.

His Honor instructed the jury, that the legal title to a chattel bequeathed, was in the executor; that an assent to the legacy, was the transfer of that legal title to the legatee ; that to constitute such assent, the executor must manifest an intent to part with his title in favor of the legatee; that this intent might be manifested by w'ords or acts; that slight circumstances were, in some cases, sufficient for that purpose; that the executor saying, that the slave belonged to the legatee, and that he had written to him to that effect, would in law, be an assent, unless at the time of making those declarations, the slave had been sold to the defendant, who was then holding him adversely ; that if the executor had sold the slave, no assent which he could give, would vest the title in the legatee ; and as to the declarations of the executor, when about to convey the property as above stated, the judge stated it in the form of an interrogatory, and asked the jury whether that declaration manifested an intent to part with, or that he had parted with, the legal title.

In submission to this opinion, the plaintiff suffered a nonsuit, and appealed.

*401An assent to a legacy of a slave by the executor ofa will made by *3. feme*cou«w. under a power, does not vest the legal title in the legatee.

*Gaston,*fox- the plaintiff.

*J. 11. Bryan, contra.*

Daniel, Judge,

after stating tbe principal facts as above set forth, proceeded as follows:

Whether the executor had assented to the legacy, so as to enable the plaintiffs to maintain their action, was a question submitted to the jury. The judge correctly stated in his charge, that ‘'the executor must manifest an intent to part with the legal title in favor of the legatee ; this intent might be manifested either by words or acts ; that slight circumstances were in some cases, sufficient for that purpose.” But in commenting on the declarations of the executor, proved to have been made just before he executed the deed for the benefit of his creditors, the judge stated it to the jury in the form of a question, “ did such a declaration manifest an intent to part with, or that he had parted with, the legal titled* Instead of charging in that manner, we think he should have told the jury, that the length of time which had elapsed from the probate of the will, to the period when the executor stated that he held the slaves as next of kin to the legatees, taken in connexion with the fact of his selling them, claiming to be the owner, was sufficient evidence if they believed it, to authorise them to find that an assent had been given by the executor.

There is another point, apparent in the case, which renders it improper to send the case back for a new trial, as the plaintiffs clearly have no right to recover in a court of law, if all the points made in it were determined in their favor. *Boreas Chapman*had, by the settlement, only an equitable interest in the slave. The power only enabled her “ by writing in the nature of a will, or other writing duly attested,” to make an appointee, to take that equitable interest which she herself bad by virtue of the settlement. The legal estate remained in the trustee, until the sale made by him to the defendant. Whether the plaintiffs can recover the slave in a court of equity, is not for us now to determine.

*402A d tl' altho’ thetmstéeinthe mamag’e ai-fa-cíes be also the executor, unless he assent by tual delivery.

Although the testatrix appointed an executor, and he had the will admitted to probate in the County Court, which by law he ought to have done, yet that did not displace the legal title in the si ove. and place it in the executor The legai title remained in the trustee ; and as the testatrix had only the equitable estate, she by her will could not invest her executor with any other interest than she had herself. The assent of such an exeou- *or ^rat,s^e,rs 110 title. The circumstance of the testatrix making *WorsLcy,*who was the trustee in the settlement, a¡S() ¡iei. executor, does not alter the case; *he still*held , , . , the slave as trustee, and as' such, an assent would not pass ¡j¡m to the plaintiff: the law would not divest the trustee of the legal title, unless he had made an actual delivery, or had executed a bill of sale to the plaintiff, which was never done. A writing in the nature of a will by *a feme*covert, under a power, is not a proper will, for she cannot make a will by the rules of law, but in equity it is an appointment, and the appointee takes under the power, coupled with the writing. We think the plaintiffs in this case, have no title at law, and therefore, the judgment must be affirmed.

Per Curiam — Judgment aeetrmed.