#### *M. J.*Verdier, *Ex'rx.*vs. *Alex. Verdier.*

Where there is a joint legacy to two or more, and the executor delivers the subject of it to one, for himself and his co-legatee, the possession by one, would be the possession of both, and the marital rights jronld attach.

*Heard before his Honor*Chancellor Dunkin, *at Charleston,*-Term, 18 — , *who made the following decree.*

The will of Micah Jenkins, was proved in March, 1830. By the third article, certain negroes were bequeathed to the five grandchildren of the testator; children of his deceased daughter, Mrs. Gervais. The executors, or such as *should*qualify, were authorized to allot to each, his or her share, as they *respectively*attained to the age of twenty-one years, or as the daughters married; provided, the husband was then of age. By a subsequent clause, the testator “ empowered his son-in-law, the Rev. Paul T. Ger-vais, if it be agreeable to him, to take to himself the sole responsibility and charge of the real and personal estate devised and bequeathed to his children, without the necessity of being appointed their guardian by the Court of Equity.” Benjamin D. Roper and the Rev. P. T. Gervais, *107were appointed executors. Mr. Roper qualified immediately. Mr. Gervais did not qualify until 30th October, 1839, some months after the death of the complainant’s intestate.

Mr. Gervais took possession of the estate, real and personal, to which his children were entitled, under the will of their grandfather, *without*qualifying, as he testified, “because he wished to act only for his own family, and he gave Mr. Roper a release for his children, drawn by a professional gentleman.”

In January, 1834, two of the grand-daughters being married, Mr. Gervais caused a division of the negroes to be made, into five portions. A lot was drawn by the husband of each of the daughters, and the negroes delivered to him, or held for him, by Mr. Gervais. The other three lots were not drawn. This division is signed by Mr. Ger-vais, and his unmarried children^ as well as by the husbands of the *daughters.*

In December, 1837, the son and the two other daughters of Mr. Gervais, having reached the age of twenty one years, a further division was made into three lots. Lot No. 2, was drawn by Martha P. Gervais. Her negroes were subsequently sold by her father, at her request, and the proceeds-paid over, on her marriage, to her husband, Dr. North. The two remaining lots, belonged to the complainant, and her brother, Dr. John Lewis Gervais. In the body of the paper, after stating the division into three lots, as numbered, <fec., it is. added, “I do, therefore, deliver over and assign to them the said lots respectively, -viz : — Lot No. 2, to M. P. Gervais; and J. L. G. and M. J. G., to take the other two lots. (Signed) Paul T. Gervais, (L. S”) John L. Gervais, Martha P. Gervais, and the complainant, assented to and confirmed this division, as authorized by the will of their grandfather, by their signatures, in writing, annexed to the division. Neither the complainant, nor her brother, in fact, drew either of the lots; but both lots of negroes went into possession of the brother, who, in the following month, (January, 1838,) took charge of the Woodlands plantation, and cultivated it with the ne-groes, in which his sister and himself were interested.' All the negroes were returned in the name of her brother.

*108He had been directed by his father, to pay half the proceeds of the crop to his sister. He accordingly deposited the money, and she did with it as she pleased.

The facts in relation to Mrs. Powell’s negroes, are somewhat different. By the will of Mrs. Powell, she devised and, bequeathed her whole estate, to her grand-nephew and nieces, the children of the Rev. P. T. Gervais, to be equally divided between them; but should either of the three younger daughters die under the age of eighteen years, and unmarried, her share should be divided among the surviving brother and sisters. Rev. P. T. Gervais was sole executor of the will, which bears date 29th January, 1831; and the executor qualified 19th July 1831. The negroes of Mrs. Powell’s estate, were divided by the executor, in the same manner, at the same time, and to the same extent, as the negroes held under the will of Mr. Jenkins. In the division of December, 1837, of Mrs. Powell’s negroes, in equalizing the lots, lot No. 2, drawn by Martha P. Gervais, was to pay lot No, 1, $83 33-100; and lot No. 3, was to pay to lot No. 1, $133 33-100. On 28th February, 1838, Dr. J. L. Gervais, gave a receipt to his father for the sum of $83 33-000, *“*being the amount due from lot No. 2,, in the division of negroes, to lot No. 1.”

On the 12th February, 1839, the complainant intermarried with Henry Verdier. The Negroes which passed under the wills of Mr. Jenkins and Mrs. Powell, still remained in the possession of Dr. J. L. Gervais, the brother of the complainant, at the Woodlands plantation, on John’s Island. Mr. Verdier resided in St. Bartholomew’s parish. He visited John’s Island in April, but nothing was done— no change made in relation to those negroes. He left the State in the early part of June, for the benefit of his health; and died at the springs in August, of the same year, intestate. The complainant administered on the estate of her husband; and she, with the defendant, his half brother, are entitled to his estate, under the statute of distributions.

The bill is filed by the complainant, on the ground, that *“*doubts have arisen, whether her interest in the negroes derived from the wills of her grandfather and Mrs. Powell, vested in Mr. Verdier;” and prays the judgment of the *109court in that matter, in order that the estate of her intestate may he settled, and the rights of those interested, ascertained and apportioned.

It is submitted on the part of the complainant, that she is entitled to these negroes by survivorship — that the legal interest was vested in her father as executor — that the possession of her brother was by his permission, and that her father’s trust could never be executed, till he had assigned her share in severalty. It is sufficiently clear, that the marital right cannot attach, unless the husband has been in possession of the estate. But this possession, may be actual, or constructive. In *Sausey*vs. Gardner, 1 Hill R. 192, it was held, that “ where the wife has a legal estate in chattels personal, and the right of immediate possession in severalty, the marital rights of the husband will attach, and vest the property in him.”

It is proper to apply the principle, in the first place, to the slaves *claimed*under the will of Mr. Jenkins. Mr.. Gervais had not qualified on the will of Mr. Jenkins. He received the estate of his children under that clause of the will, which conferred on him the authority of a guardian. It appears to the court, that when the executor delivered to him the negroes, and took his discharge, this was an assent to the legacy, and the title was no longer in the executor. From that time, Mr. Gervais held the negroes-in the character of guardian to his children. In *Davis*vs. jRhame, 1 M’C. C. R. 195, it was determined that the possession of a guardian for the benefit of his female ward, was really her’s, and was consequently her husband’s ; and that the marital rights of the husband attached to the slaves, although they had never been in his actual possession. So in *Muse*vs Edgerton, Dudley’s Eq. Rep. 179, where the guardian had sold the slave of his female ward, Chancellor Harper held, that “ the husband might have sued *in his own name, for the slave in*question.” If the complainant had been sole legatee, it would seem to be not doubtful, on authority, that even if Mr. Gervais had never parted with the possession, the marital rights would, have attached. It is not clear to the Court, that the community of interests in other persons, affects the principle. In several cases, it has been held by the Court, that the-possession of one joint-tenant, or tenant in common, was *110the possession of his co-tenant,with reference to the marital rights, as well as for other purposes. Such was the case of the *Ordinary*vs. *Geiger,*2 W. *&*M’C. R. 151; in *Burgess*vs. *Heape,*1 Hill’s C. R. 397; and the general principle was recognized in *Snowden*vs. *Logan,*Rice’s Eq. R. 174. In the *Ordinary*vs. *Geiger,*and in *Burgess*vs. *Heape,*no partition had been made, and yet it was held that the marital rights attached.

In the case before the Court, the legal *estate*was in the children — not in their father — his possession was their possession. If one, or four, of the children, had been in actual possession, it would have inured to the benefit of the other children, or child. The inference is rather more direct, that the possession of the guardian of all is the possession of each one. But it may be proper hereafter to enquire, what was the effect of the subsequent proceedings between Mr. Gervais and his children, in relation to the slaves received from the executor of Mr. Jenkins.

A different case is presented, in reference to Mrs. Powell’s negroes. Mr. Gervais was the sole executor, and the légal title was in him. Until his assent to the legacy, the title of the legatees was incomplete. .- If his assent was not given prior to the death of the husband, the marital right never attached, and the wife is now entitled to the whole, by survivorship. On the other hand, if the assent of the executor be once given to a specific legacy, it vests the interest at law irrevocably. *Young*vs. *Holmes,*1 Stra. 70; 4 Rep. 28. “ When a certain thing, as a horse, or cow, is devised, as soon as the executor assents, the property vests in the legatee, *and he may have an action at common law for the recovery of the thing.”*2 Rop. Leg. 543, (3d-Eng. ed.) In the same authority it is stated, 1 Rop. 566, “ By assent, the legal interest, which the executor had in the fund, ceases, and the entire property, *legal and*equitable, becomes vested in the legatee.” “ If a legacy be limited to several persons in succession, an assent to the first taker, vests the interest of all.” Accordingly, if a term were devised to A. for life or years, with a rent out of it to B., the assent of the executor to A. or to B., would, in either case, inure to the benefit of both, 8 Rep. 95; and perhaps for this reason, as the assent of the executor is required as well for the benefit of creditors, as for his own safe-guard, an inference *111arises from liis assent to one of the legatees of the specific property, that lie has no occasion for the term, or rent, to pay debts : for if he had, then his assent to either of the legatees would be improper, as both ought to abate *pro ra-*ta1 Rop. Leg. 570,

By the will of Mrs. Powell, it was provided, that if either of the three younger daughters of Mr.. Gervais, (of whom complainant was one,) should die under the age of eighteen years, *&c.,*her share should be divided between the surviving brother and sisters. At the division in January, 1834, the complainant had attained the age of eighteen years. The negroes of Mrs. Powell were then divided by the executor into five lots, which he designates as a “ division among and between my five elder children, of all the negroes bequeathed to them under the said (Mrs. Powell’s) will.” Lots No. 1 and 3, were drawn by Mr. Robinson and Mr. Miller, respectively, in right of their wives; and they, together with J. L. Gervais, M. P. Gervais, and the complainant, by their written acknowledgment, assented to and confirmed the division. Lots No. 2, 4 and 5, were not drawn by either of the parties. The negroes included in these lots, remained in the possession of Mr. Gervais. The division, however, seems to have been preserved and regarded, although the ownership of each lot was not fixed or designated. On the principles stated, it appears to the Court, that this incomplete division amounted to an assent on the part of the executor. Prom that time, the legal interest of the legatee, before -an inchoate right, became perfect and complete; and proceedings at common law might have been maintained, for the enforcement of the right. If the three legatees had united in an action of de-tinue, the executor would have been estopped by his own act from disputing his assent. If Mr. Gervais held the ne-groes after his children attained the ages of twenty-one years, his possession was permissive, was for them, as their friend and protector, and not as the executor of Mrs. Powell.

But in December, 1837, the division was extended, both of the negroes of Mrs. Powell, and of Mr. Jenkins. The three lots which had been undrawn in January, 1834, were enlarged and numbered 1, 2, 3. It has been already sta*112ted, that lot No. 2 was drawn by Martha P. Gervais. In •the paper signed by the parties to the division of Mr. Powell’s negroes, it is stated, “ The lot No. 2, is drawn by Martha P. Gervais ; and the other two lots are retained by J. L. Gervais and Margaret J. Verdier, as their undivided shares.” In the view taken by the Court, it does not seem necessary to determine whether any subsequent arrangement was made, between Dr. Gervais and his sister, as to the ownership of the two lots respectively. Some understanding to that effect appeared not unlikely, from the fact that, in February, 1838, two months after the date of the division, Dr. Gervais gave to his father a receipt for $83 33-100, “ being the amount due from lot No. 2, in the division of negroes, to lot No. 1;” and from the further fact, that in a formal division made about three or four months prior to the filing of this bill, the negroes included in lot No. 1 of the division of December, 1837, were allotted to Dr. Gervais ; and those included in lot No. 3 of that division, were allotted to the complainant.

But, for the purposes of this case, it appears to the Court unimportant, whether these lots had been assigned to the parties, respectively, prior to the death of Mr. Verdier, or have been yet assigned. After the written acknowledgment of all the parties on 28th December, 1837, the Court is bound to conclude that, on that day, the negroes in lots No. 1- and No. 3, in the division both of the negroes of Mrs. Powell and Mr. Jenkins, were “ assigned and delivered” by Mr. Gervais, either to his son and daughter, respectively, or to his son, Dr. Gervais, for himself and his sister, the present complainant. If in severalty, it is decided by *Sau-sey*vs. Gardner, that the marital rights attached. But if they were held in common by Dr. Gervais, then the authority of *Pickett*vs. Barker, Dudley’s Eq. Rep- 290, is not less decisive. “ If,” says the Court, “there were a joint legacy to two, and the executor deliver the subject of it to one, for himself and his co-legatee, here the possession of ■one would be the possession of both, and the marital rights would attach.”

It is ordered and decreed, that an account be taken of the personal estate of Henry Verdier, deceased, and that a writ of partition issue, to divide the negroes between the *113complainant and defendant, on the principles of the decree. Parties to be at liberty to apply for such other and farther orders, as may be necessary.

Costs to be paid out of the estate.

From this decree the complainants appeal, and submit to the Court of Appeals the following grounds:

1. That Mr. Gervais was an executor of Mr. Jenkins, although he did not prove the will; and was not guardian of his children, because Mr. Jenkins could not appoint a guardian to his grand children, in the lifetime of their father ; and that all his acts in the division of the negroes bequeathed to his children by Mrs. Powell and Mr. Jenkins, were done professedly in his character of executor; and that therefore his possession is to. be regarded as the possession of an executor.

2. That the intention of the parties 'in the several divisions made between Mr. Gervais’s children, was against the conclusion that he had. assented to the legacies, as far as John Lewis and Margaret were concerned; for it was their object to vest the possession of the shares of Mary, Claudia, and Martha, in them, but to retain the shares of John Lewis and Margaret in the executor.

3. That the possession of John Lewis in 1838, was as the agent of his father, the executor; and the intention of the parties was to reserve to the executor his rights, until a division should be made between John Lewis and his sister ; and that if Henry Yerdier had sued either Mr. Ger-vais or his son at law, to recover a moiety of those negroes, he must have failed in his action ; and if he had brought a writ of partition, either at law or in equity, he must have made his wife a party.

And lastly, That the undivided shares of Mrs. Yerdier, in the legacies of her grandfather and her aunt, have survived to her by the decease of her husband in her lifetime, and ought not to be distributed as the estate of Henry Ver-dier.

Curia, *per*Dunkin, Chancellor.

This is a very hard case; it is not, perhaps, relieved by the recollection, that the father of the complainant, influenced by high and ho*114norable motives, declined, a settlement of his daughter’s estate, when it was proposed by the intestate, on the eve of their marriage. According to his testimony at the hearing, he had not been long acquainted with the intestate; but he doubted the general policy of such arrangements. He thought the experience of a twelve-month would enable him to judge whether such a measure would be expedient; and, as the husband was not to have the actual possession of his wife’s property, he erroneously supposed that his marital rights would not, in the mean time, attach. However much the mistake may be regretted, it is not in the power of the Court to modify the law, or alter the decisions, in order to relieve against individual hardship. After carefully reviewing the authorities cited by the decree, it seems impossible to withdraw the case from the principles there established or recognized.

*Pettigru &*Lesesne, for the motion.

The decree is affirmed.

BENJ. F, DUNKIN,

We concur.

David Johnson, Wm. Harper.