#### JASPER ETHERIDGE, ADM’R. DE BONIS NON, &c. vs. ELIJAH S. BELL.

Where slaves are bequeathed by a testator to Ms widow for life, or during widowhood, and after her death or marriage to be divided among her and his children, the assent of the executor to the legacy vests a right in those in remainder, and an administrator de bonis non, cannot recover them.

They are to be divided according to the provisions of our statute for those who hold slaves in common.

The eases of Burnett v. Roberts, 4 Dev. 81, and Smith v. Barham, 2 Dev. Eq. 420, cited and approved.

Appeal from the Superior Court of Law of Carteret County, at the Fall Term, 1844, his Honor Judge Dick presiding.

This was an action of trover, to recover damages for the conversion of a slave. Plea, not guilty. William Hatsell made his will, and thereby bequeathed to his wife all his slaves, for her life or widowhood; and on her death or marriage, he gave the whole of his said slaves to his children and wife, should she marry, to be equally divided between them. The original executor assented to the legacy, and delivered the slaves to the widow, (tenant for life,) who never afterwards married, and she held possession of them up to her death, which happened in the year 1833. Archelaus Hatsell, one of the children of the testator, sold the said slave to the defendant. The defendant contended on the trial, that the plaintiff, as administrator de bonis non, never had any title to the slaves, as the assent of the original executor to the legatee for life, was an assent to the remainder man; and that the whole title thereby passed to the testator’s children, and out of the executor. And that as Archelaus Hatsell, one of the tenants in common in remainder of the slaves, made a conveyance of this slave to him, he had a right to hold him against the plaintiff. The judge charged the jury, that the plaintiff had a right to recover. There was accordingly a verdict and judgment for *88the plaintiff, and the defendant appealed, for misdirection as to the law.

j W. Bryan and Iredell for the plaintiff,

cited Dewitt v. Schoonmalcer, 2 Johns. Rep. 245. Dunwoodie v. Carring-ton, 2 Oar. Law Rep. 469.

J H. Bryan and Washington for the defendant,

cited Jones v. Zollicoffer, N. C. Term Rep. 214. Ingram v. Terry, 2 Hawks, 122. Alston v. Foster, 1 Dev. Eg. 837. Burnett v. Roberts, 4 Dev. 87. Smith v. Barham, 2 Dev. Eg. 420.

Daniel, J.

The authorities cited by the defendant’s counsel, Burnett v. Roberts, 4 Dev. 87, and Smith v. Barham, 2 Dev. Eq. 420, clearly shew, that the plaintiff had no title to the slave after the assent of the original executor to the legacy for life, which is an assent to the legacy in remainder. The remedy for division by the tenants in common of the slaves, (the defendant by the assignment of A. Hatsell, being one of the tenants in common,) was by petition under the act of Assembly, Rev. St. ch. 85, s. 18, 19.

Pee. CüRiam, Judgment reversed and venire de novo.