#### WILLIAM WOOTEN, Administrator de bonis non, v. SARAH JARMAN.

A bequest cannot, in law, have the effect of confirming a parol gift of a slave, so as to vest the title in the donee, independently of the assent of the executor.

(The case of Lawrence v. Mitchell, 3 Jones’ Rep. 190, corrected and explained.)

This was an action of trover, tried before Saunders, J., at the last Fall Term of Lenoir Superior Court.

The action was originally commenced by the executor of Windall Davis, for the conversion of certain slaves, Chaney and her children, and on the suggestion of the executor’s death, was carried on in the name of the plaintiff, as administrator de bonis non. The following case was agreed on, and submitted for the judgment of the Court below.

*239It is admitted that the will of Windall Davis contains the following clauses:

'•'■Item. I give and bequeath unto my daughter, Sally Jar-man, one dollar, with the negroes and other property, I have given her before.”

“ Item. I leave two negroes to be sold, * * * and the money to be divided among my seven children ; the names of the two negroes are Chaney and Isaac, and the rest of my property, of all kinds, to be sold and divided also.”

It is admitted that the plaintiff is the administrator de bonis non of Windall Davis.

It is further admitted, that the defendant, Sarah Jarman, is the daughter of Windall Davis.

It is further admitted, that the slave, Chaney, was placed in th e possession of the defendant by her father during his life-time, and has continued in her possession up to the commencement of this suit, and that the other slaves, sued for, are the children of Chaney, born before the commencement of this suit, and before the demand, and since the said Chaney was placed in the possession of the defendant.

It is admitted that the slaves are of the value of $3500.

It is further admitted that, previous to the commencement of this suit, the plaintiff made a demand upon the defendant for the slaves, and she refused to surrender them.

If, upon this statement of facts, the plaintiff is entitled to recover, then judgment is to be rendered for the sum of $3500. If otherwise, judgment is to be rendered for the defendant.

The Court gave judgment for the plaintiff, for the sum agreed, and the defendant appealed.

J. H. Bryan and Strong, for plaintiff.

McRae, Greene, Stevenson and J. W. Bryan, for defendant.

Pearson, C. J.

Waiving a consideration of the question, growing out of the fact, that the testator directs a negro, named “ Chaney,” to be sold, thereby, as it would seem, taking her out of the general words of the bequest, under which the *240defendant claims, tinless there be two negroes of the same name, we concur with his Honor, that upon, the facts agreed, the plaintiff was entitled to recover.

In this Court, the parties must stand on the legal title. That was in the testator, and at his death, passed to the executor, and at his death, without an assent to the legacy, passed to the plaintiff, as administrator de bonis non, &c. It is not stated, on the “ case agreed,” that there was an assent ; on the contrary, the record shows that this action was commenced by the executor. So, the plaintiff acquired the legal title to the slaves, as effects of the testator, not administered, and the defendant must assert her right, if she has any, in another fornm.

To meet this difficulty, Mr. McRae assumed the position, that an assent was not necessary, for the defendant does not derive title, through the executor, under the will, but has a title paramount, b_y force of the original parol gift, the effect of the will being a confirmation thereof.

The position is untenable. There is no authority to support it. “ The reason of the thing” is against it, and it is in direct violation of the statute, making parol gifts of slaves void, except in cases of intestacy. The legal effect of a will, is to pass the title to the executor, by whose assent it passes to the legatee, and a legacy, which has the effect of confirming a prior gift in such wise, that the title shall pass, by force of the gift, and not by force of the will, is an anomaly in die law. The title was in the testator at the time of his death. How could it get to the legatee, except through the executor, under the will ? That which is void cannot be confirmed, consequently the bequest, “I give Sally Jarman, one dollar, with the negroes I have given her before,” cannot have the effect of setting up the parol gift, so as to make the title jump back, and vest by force of the gift, in violation of the statute ; and the reference to the gift, can only have the effect of answering the purpose of a description of the negroes, which he intended to bequeath. Under this view, a reference to a prior gift of a negro woman has been seized upon by the courts, in many cases, to enlarge the subject of a bequest, so *241as to take in children, born between the making of the will and the death of the testator, who would be otherwise undisposed of, or fall into the residuum, under a long established rule of construction ; but this is, w'e believe, the first attempt ever made to give to it the effect of vesting the title of slaves by force of the parol gift, so as to exclude the right of the executor, and force creditors to sue the donee, as executor de son tort.

Our attention was called, on the argument, to Lawrence v. Mitchell, 3 Jones’ Rep. 190. That was detinue, by an executor, for slaves. In the Court below, the plaintiff had judgment, on the ground, that the slaves passed to the residuary legatee. In this Court the judgment was reversed, on the ground, that by force of the words, “ all my negroes not heretofore disposed of,” and other special circumstances, the negroes did not pass to the residuary legatee, and that by a proper construction, the will was a confirmation of a parol gift of a negro woman, who was the mother of the negroes sued for. Erom this case, Mr. McRae draws the inference, that where a will confirms a parol gift, the title does not pass to the executor ; for, if so, then the plaintiff was entitled to judgment, whether the negroes fell into the residuum or not. The inference is a just one, from the case as reported, and we were induced to examine the original papers. We there find this important fact, which is not noticed in the report: “ It was not contended by the plaintiff, that he was entitled to recover, if the will confirms the gift to the defendant.”

This admission was made in order to present the question of construction, for, otherwise, it was clear the plaintiff was entitled to recover, at law, whether the negroes fell into the residuum or not, and but for the admission, no question could be made as to his right to a judgment. So, that the case, correctly stated, is an authority against the position assumed on the argument.*

*242It was also insisted by Mr. McRae that, supposing the direction to sell the negro woman, has the effect of taking her and the children born since the death of the testator, out of the general description contained in the bequest to the defendant, yet there is nothing to prevent the children born before the death of the testator, (to whom the direction to sell does not apply,) from passing to the defendant, under the general description, made by the reference to the prior gift. That may be so, but we are not at liberty to decide the question, as it can only be presented in a proceeding by the defendant against the plaintiff to recover her legacy, and, in the mean time, the plaintiff having the legal title, as administrator d& bonis non, is entitled to the judgment of this Court.

Per Curiam,

Judgment affirmed.

*

The Reporter claims to be excused for this omission, as no allusion is made to the omitted matter in the opinion of the Court in Lawrence v. Mitchell, and no stress laid on the fact involved in it.