#### SETH HOTCHKISS AND WIFE v. ZEBULON THOMAS.

Where an estate in slaves was given by will, to one for life, with a limitation over to another, and the executor assented to the estate of the first taker, his assent to both gifts, in succession, will be implied, and iho repudiation of the legacy by the first taker, was Held not to do away the effect of the executor’s assent to the succeeding gift.

A limitation over of a chattel interest, after the expiration of a life-estate, is not, strictly, a remainder, but an interest in futuro, created by an executo-ry devise of a distinct property, and the rule, that the assent to one, is an assent to the other, is not founded on the idea that the two interests constitute one estate, but because, it being the executor’s duty to assent to both, it will he considered as having been made to both, necessarily, unless restricted to one alone.

It would seem where the taker of a life-estate in a chattel under a will, had no other title than that derived from the will, and the executor’s assent, and he accepted the possession as a legatee, that he could not be allowed to set up a merely pretended title in opposition to the executor, and the ulterior donee.

Trover, tried before Baxley, J., at the last Pali Term of Macou Superior Court.

The action was brought for the conversion of a slave, named Adeline, and her six children, in the possession of, and and claimed by the defendant, and was tried on the general issue.

The case was, that John Davidson owned the slave Adeline and two others, and by his will gave all the said slaves to his wife Margaret, during her life, and at her death, gave a girl, *538Clarissa, to bis son James, another girl, Mary, to his daughter Catharine, and the third, Adeline, to his daughter Olivia, then the wife of Thomas Hotchkiss, who are the present plaintiffs. The testator died in September, 1845, and one IT. L. Potts proved the will as executor, and immediately gave up to Mrs. Davidson all right he had in the slaves, as executor, and permitted her to take possession and exercise exclusive dominion over them as her own; but in respect to the slave Adeline, Mrs. Davidson declared that she claimed her as her own property under a former husband, and in opposition to the wdll of her last husband, Davidson. The widow', Margaret, on the 6th of January, 1846, sold the slave Adeline, to the defendant, Thomas, for the price of $500, and Potts assented to the sale, and, on the 10th of March, 1846, he covenanted with the defendant for the title and quiet possession of the slave forever. Mrs. Davidson died in August, 1857, and after demand and refusal, this suit was brought in February, 1858.

The counsel for the defendant, insisted that there was not an assent of the executor to the legacies to Mrs. Davidson, and the plaintiff, Olivia, so as to vest the title in them as legatees; because to constitute an assent of the executor, so as to pass his title, the legatee must accept'the thing, and agree to hold as legatee; and, therefore, that if Mrs. Davidson claimed Adeline as Iter own, and to hold adversely to the executor, the assent of the executor to her having the property, which was in him, would not vest the slave in her against her consent, and, so, not vest the remainder in the plaintiffs; and the counsel prayed instructions accordingly.

The Court declined giving the instructions prayed, and, on the contrary, directed the jury that, if the executor gave up the negroes to Mrs. Davidson, surrendering all right to the legacy, which he had as executor, and permitting her as legatee, to use it as her own, that was such an assent, on the part of the executor, as would vest the slave in Mrs. Davidson for her life, and afterwards, in Mrs. Hotchkiss, absolutely, although Mrs. Davidson may have claimed the said Adeline in her own right, and against the will.

*539The Court further instructed the jury that, after having thus assented to the legacy, the executor had not the title to the slave, and that his concurrence in the sale to tire defendant and covenant for the title, could not affect the rights of these parties.

Yerdict for the plaintiff. Judgment and appeal.

JV. W. Woodfin, and /Shipp, for the plaintiff.

Gaither, for the defendant.

Ruffin, J.

Supposing Adeline to have been the property of Mrs. Davidson, independent of her husband, it might admit of some consideration, whether she could split up the operation of the executor’s assent to the whole gift to her, so as to claim some of the slaves under the assent,- and others against it. The Court does not, however, entej into the consideration of the point, as it is not necessary to the decision here, since it is expressly stated in the defendant’s exception, that, although Mrs. Davidson claimed Adeline as her own by title paramount, yet the slave actually belonged to the testator, and, therefore, she derived the only title she had to her, through the will, and the assent of the executor. Row, a court would pause a long while before a legatee of a particular estate, whose only title is thus derived, and ¿Ató-a good title, and who by the assent of the executor gets possession, would be allowed to deny that title, and set up an adverse one, when the sole purpose of so doing, is tortiously to defeat a limitation over, after the expiration of the particular estate. It need not be denied, that, if there be no election in the case, or that doctrine be not applicable in a court of law to an ex-executor’s assent, Mrs. Davidson might assert her own right to the slave, if she had it, and we suppose she might. But when she had no tittle, whatever, but that derived under the will, and could have got the possession in no other way, but as legatee, it would seem, both on principles of law and justice, that she could not accept the possession from the executor, and at the same time set up a title merely pretended in *540opposition to the executor, or to an ulterior donee. But this case does not depend, even on the correctness of that position. For, it may be yielded, for the sake of the argument, if there had been no limitation over, and the reversion after Mrs. Davidson’s life, had been left in the executor, that, as between her, and him, the repudiation of his assent to the legacy to her might leave the title in him, and make it necessary for him to retain or recover the slave, and hold her uutil Mrs. Davidson would accept her as legatee; and, therefore, that he would be barred of the title after so long an adverse possession by her vendee of the absolute property. But in this case, that conveyance is avoided entirely by the effect of the executor’s assent on the interest limited over. The general rule is, that an assent to the particular estate amounts to an assent to a gift limited thereon, and under the operation of that rule, the title vested in remainder in the feme plaintiff. It is said, however, that the assent to the gift over, was ineffectual by reason of the dissent of Mrs. Davidson to take under the will, and the executor’s assent, because the particular estate, and the remainder formed but one estate, and if the former did not vest, the latter could not. It is true, that form of expression is found in the books, and it is sometimes given as the reason why the assent to the particular estate is an asseut to a remainder. But, in respect to gifts of personal chattels, the expression is inaccurate, for the two interests do not constitute one estate properly speaking; but, after a life estate, the limitation over is not by way of remainder, technically, but by way of executory devise of a distinct property, to arise m fu-turo ; and hence the executor may, probably, by express terms, limit his assent to either interest, separately, and it will be good to that extent only. If, however, he does not expressly restrict his assent to the gift, to the first taker, the general inference is, that he means to assent to all the gifts in succession. But that is not because those gifts make up but one estate ; on the contrary, it arises by fair inference, from his assent to the prior legatee of the specific chattel, that neither the present, nor the ulterior interest is needed for the payment *541of debts, since, if it were, it would be wrong in him to assent to either legacy, inasmuch as they ought to be contributory pro rata to the debts, and such wrong is not to be presumed. It appears, then, that although the assent to the one legacy may thus be inferred from that of the other, the assent to each is in its nature distinct, as the legacies themselves are as to their vesting in right or possession. Hence, if it'be admitted, that Mrs. Davidson did not take as legatee, yet, her refusal of the bounty of her husband, could not defeat his bounty to his daughter, nor defeat the assent of the executor to the gift to the daughter. The executor is not obliged to retain the whole title in himself because one of the legatees refuses to accept the legacy of a limited interest; but he may relieve himself of responsibility, and do justice to the ulterior legatee, by an immediate assent to that legacy, so as to vest it in right at once. By the gift, the donee has an inchoate right to the legacy, and the assent of the executor is only required as a renunciation of his right to apply part of the testator’s effects to the payment of the debts, and the charges of administration.- — ■ IVhen that is thus put out of the way, the gift becomes perfect under the will, and the executor never can resume the title or the possession; consequently, the concurrence of the executor in the sale to the defendant cannot affect the title vested in the feme plaintiff by the previous assent, and the plaintiffs have a right to recover, notwithstanding the defendant’s possession; because they were married at the death of the testator, and because, this suit was brought almost immediately after their right to the possession accrued.

Pee Oueiam, Judgment affirmed.