#### BUTLER S. WHITE v. GEORGE WHITE.

Acquiescence by an executor in the possession or sale by the legatee for life of the thing bequeathed, furnishes a ground for inferring an assent to the ulterior bequest. But where the person nominated executor in the will, refuses or neglects to accept the office, no acquiescence on his part, nor act of his, not amounting to an act of administration, will justify the inference; because, in order thereto, there must in fact be an executor to assent.

Jurors are not bound to take either the whole or any part of a witnesses’s testimony as true, if in their consciences they do not so believe. But where it is incumbent on a party to establish a fact, and the *only*testimony in relation thereto contradicts it, a jury cannot capriciously mangle the testimony, so as to convert it into evidence of what it does not prove. If the witness be deserving of credit, the fact necessary to be shewn is disproved — and if he be not worthy of credit, there is a defect of proof.

Where a testator, in one clause of his will, lends to his wife all his estate, real and personal, for life, and in a subsequent clause provides that after the death of his wife his son shall have a particular negro woman, but that her second born child after that time, shall be given to his grandson, *it seems*that the widow takes a life estate in the child.

This was an action of Detinue for a negro woman slave named Charlotte, tried at Iredell, on the last circuit, before his honor Judge Dick.

The plaintiff claimed title to the negro in question under the following clauses of the will of John White, deceased:

“ I lend unto my beloved wife, Mary, all my property real and personal, to have, hold and use for the purpose of her sustenance during her natural life or widowhood.”

*402Dec. 1839

« j will that after the death of my beloved wife, my son WiU¡am shall have one negro woman named Lucy; but that her first born child after this date, shall be given to my son Howel. The second to my grandson Butler Stonestreet White.”'

It was admitted that the slave in question was the second child of the woman Lucy, mentioned in the will oí John White; that she was in the defendant’s possession, and had been so from the time of her birth; and further that this action had been brought within three years after the death of the testator’s widow. The defendant claimed under one Robert Simonton; and it appeared in evidence that the wid-owof John White, the testator, and William White, one of his sons, in the spring of the year 1819, sold and delivered the negro woman Lucy to Simonton, in discharge of a debt due from the testator to the said Simonton; and that the latter, in a few days afterwards, sold her to the defendant; and that Charlotte was born after Lucy came into the defendant’s-possession. The defendant also proved, by one Nicholas Norton, that he, the witness, was named executor in the will of the said John White; that he was also a witness to the will, and proved its execution in the County Court of Ire-dell, when it was admitted to probate; but that he never qualified, or in any way acted, as executor. He stated further, that when Simonton bought Lucy from the widow and son of the testator, he, Norton, at the request of Simonton, took her to his own house, and in a few days afterwards delivered her to the defendant, by the direction of Simonton. Upon these facts. His Honor being of opinion that the plaintiff’s claim was barred by the statute of limitations; and further, that there was no evidence of Norton’s having acted as executor of John White, deceased, the plaintiff submitted to a nonsuit and appealed.

*Badger*for the plaintiff.

*Boyden*for the defendant.

CrA'STON, Judge.

Before the plaintiff could entitle himself to a verdict, it was necessary to shew an assent on the part of the executor to the legacy in his favour. Acquiescence *403by an executor in the possession or sale, by the legatee for life, of the thing bequeathed, would furnish a ground for ferring an assent to the ulterior bequest. But such an inference could not be here raised, until it appeared that there was in fact an executor to assent. No man can be compelled to accept the office of executor; and without some act manifesting acceptance of the office, it cannot be presumed. The ordinary mode in which this acceptance is declared, is by proving the will as executor. In this case the office was not thus accepted. The individual named as executor in the will was also a witness to its execution; and on its production in Court, he testified to its execution as a witness, but did not qualify to it as executor. It became, therefore, necessary forthe plaintiff to shew some act of administration characteristic of the office of executor, done by the person thus nominated, which was equivalent to an acceptance of the office. He offered no testimony of any kind tending to shew such an act. But, it is insisted on his behalf, that this defect in his testimony was supplied by the testimony on the part of the defendant. The latter examined the supposed executor, who testified that he had neither qualified nor acted as executor; and stated also, that when the sale was made of the negro woman Lucy, by the widow of the testator, to Robert Simonton, from whom she was shortly afterwards purchased by the defendant, he, at Simonton’s request, took the negro woman to his house, and afterwards, by Simonton’s direction, delivered her to the defendant: Now, it is not pretended that this testimony, if true, proves or tends to prove that the witness acted as executor; but it is argued that it should have been left to the jury, because they might have believed that the acts were done, but not done in the charac-acter of agent of Simonton; and thence have inferred an in-termeddling with the estate as executor. To this argument we think it is properly objected that the opinion intimated by the Judge, that this testimony was not evidence of acceptance of the office, is necessarily predicated upon the supposition of its truth — and if the plaintiff denied the representation of facts as made by the witness, he ought, in fairness, to have insisted that the truth of this representation should *404have been submitted to the jury. But there is another answer to the argument, which we think satisfactory. Certainly jurors are not bound to take either the whole or any part of a witness’s testimony as true, if, in their consciences, they do not so believe But when it is incumbent on a party to establish a fact, and *the only*testimony in relation thereto contradicts it, a jury cannot capriciously mangle the testimony so as to convert it into evidence of what it does not prove. If the witness be deserving of credit, the fact necessary to be shewn is disproved — and if he be not worthy of credit, there is a defect of proof.

It is not necessary to express an opinion upon the other point. If it were, we should probably hold that according to the true construction of the will, the legacy to the plaintiff was not to take effect in possession until after the death of the widow; that if he had- a right of action, it did not arise until her death, and that therefore this suit was not barred by the statute of limitations. The judgment is affirmed with costs.

Per Curiam. Judgment affirmed.