#### EDMUND B. SKINNER, ADM’R. OF ALFRED S. BARROW vs. MARTHA BARROW.

A having four children, devised, since the act of 1827, certain slaves to Ms Nancy, then a married woman, and if she died without issue, one half to her husband, and the other half to her brothers and sisters. The executor assented to the legacy, and Nancy died without issue, leaving a brother and two sisters, one of whom was then a married woman, but her husband died soon afterwards. Held,, that the husband had a vested legal interest in one-third of the moiety of the said slaves, which passed on his death to his administrator.

Appeal from the Superior Court of Law of Perquimons County, at the Spring Term, 1845, his Honor Judge Battle presiding.

This was an action of detinue for slaves, in which the following case agreed was submitted for the decision of the court. The negroes in controversy formerly belonged to Eri Barrow, who died in the year 1832, having previously made his will, of which he appointed his son Joseph W. Barrow, and his two sons in law John Mardree and Alfred S. Barrow executors, all of whom qualified. In the 4th clause of the will the testator bequeathed as follows ; “I lend to my daughter Nancy E. Barrow (now Moore) the following property (enumerating slaves and other personal property;) also if my said daughter Nancy should depart this life without issue, then it is my will and desire, that her husband William C. Moore should have fine half of the property, that I have lent to my daughter Nancy, but the próperty is to be held in trust by my executors until the death of my daughter Nancy, and then the half of the property is tó be equally divided between her brother Joseph and her two sisters, Martha Barrow and Rachel Mar-dree.” William C. Moore, the husband of Nancy, departed this life in February 1838 without issue, and his widow Nancy in July 1839, without issue. After the death of the testa-£017 the executors delivered over to William C. Moore the-*415negroes mentioned in the clause of the will referred to, of whom the negroes in controversy were a part. Shortly after ’ the death of Nancy E. Moore, the other legatees of the testator, of whom the said Alfred S. Barrow, in right of his wife Martha, a daughter of the testator, was one, divided the said ne-groes among themselves, in which division two of the negroes now sued for were allotted to Joseph W, Barrow, in whose possession they continued until after the death of Alfreds. Barr.ow in February 1842. The administrator of William .0. Moore commenced a suit against the three executors of Eri Barrow for an undivided half of the negroes and other property mentioned in the said 4th clause of the will, in which a recovery was effected. Alfred S. Barrow, the plaintiff’s testator, died before the decision of that suit, which was continued against the other executors. Under an interlocutory order in that suit, the negroes mentioned in the said 4th clause were .divided by commissioners, in which division one half the negroes were allotted to the estate of William C. Moore and one half to Joseph W. Barrow, John Mardree and the estate of Alfred S. Barrow. Of this latter half the negroes in controversy were a part. After this division had been made, the same commissioners, on the same day, divided the negroes that had been allotted to Joseph W. Barrow, John Mardree and the estate of Alfred S. Barrow between the said Joseph, John and thp der fendant, who is the widow of the said Alfred. After this, the three negroes now in controversy went into the possession of the defendant and continued in her possession up to the commencement of this suit. At the last mentioned division the executor of Alfred S. Barrow was present and made no objection to it. The plaintiff is the administrator de bonis non of Alfred S. Barrow.

Upon this agreed case his Honor decided that the plaintiff \yas entitled to recover; and judgment being pronounced accordingly, the defendant appealed.

_4. Moore for the plaintiff,

submitted the following argument;

The assent of the executors to the bequest to William C. *416Moore, was an assent to the remainder-man. Hearne v. Kevan, ^ ^^ell’s Equity, 34. The remainder-men were, therefore, tenants in common of the remainder, and upon the death of winjam o. Moore, A. S. Barrow was entitled to an estate in possession of an undivided third part oí the negroes, which immediately upon his death vested in his personal representative. Pettijohn v. Beasly, 4 Dev. 512.

A division having been made after the death of William C. Moore, between A. S. Barrow, John Mardree, and Joseph W. Barrow, all of whom were the executors of Eri Barrow, of the negroes bequeathed to William C. Moore, they, as between themselves, became tenants in possession of the negroes allotted to them respectively. The subsequent recovery by the ¡administrator of William O. Moore, of one half of the ne-groes, did not render void the assent which the executors had before given to William C. Moore, and their subsequent election to hold the negroes as legatees, and not as executors. As between themselves, each had a perfectly legal title ; they all claimed under the same will, and each had assented to hold the negroes as legatees, and not as executors. There was, therefore, an estoppel in pais, upon such, with the others to claim in opposition to the assent. When the recovery was effected by the administrator of William C. Moore, of one half the negroes, that recovery was satisfied by a surrender of .one half in severalty, and the other half was divided among them. As between themselves, this was done in their capacity as legatees, and not as executors. The legal title of the whole had been previously vested in them by their assent.

Thqt the particular negroes claimed in this action had not been allotted to A. S. Barrow in his life time, cannot affect ¡the question. He had by the assent of the executors, a vested interest in possession, and the value of that interest is measured by the value of these particular negroes, which ¡were allotted to his executor after his death.

Another view may be taken of the case. The assent of the executors to the bequest of William C. Moore, vested in ¡him a life estate, with an executory devise of one half of them, *417and as to the other undivided half, in the other legatees of Eri Barrow. They were all tenants in common in remainder. And as soon as William C. Moore died, his personal representative, and the other legatees of Eri Barrow became tenants in common in possession of all the negroes. Now, as the possession of one tenant in common is the possession of all, this undivided interest of A. S. Barrow would pass to his personal representative, though he might never have had the actual possession of any of these negroes. The division, which was made after his death, was merely a mode of ascertaining the value of this interest in the whole. As the title to these particular negroes vested in his executor, they upon his death passed to the plaintiff as administrator de bonis non.

No counsel appeared in this court for the defendant.

DaNiel, .T.

We agree with his Honor, who tried this cause below. Alfred S. Barrow, the husband of the defendant, was alive when Mrs. Moore died without issue. The executory devise over of the slaves had then become vested bequests to her brother and two sisters. Alfred S. Barrow, in right of his wife Martha, was then a tenant in common in possession of the said slaves with those claiming under Joseph Barrow and the other sister Rachel Mardree, and, on his death, the slaves constituted a part of his personal estate, and belonged to his administrator, and not to his wife. The fact of the administrator being present, when the commissioners divided the slaves and put this share in the possession of the defendant, does not destroy his title to the same. It does not amount to either a gift, a sale or a release of the title of the slaves, as the defendant was but a volunteer and not a purchaser of the slaves. The judgment must be affirmed.

Pee. Curiam, Judgment affirmed.