#### RICHARD C. WINDLEY, Administrator de bonis non, v. JEREMIAH GAYLORD.

There is nothing in the statute (Rev. Code, oh. 119, sec. 29) providing for a child, bom after the will of his parent was made, which forms an exception to the rule of law, that an assent by an executor to the life-tenant, is an assent to those in remainder.

The assent of an executor to a life-tenant, generally, leaves nothing that can vest in an administrator de bonis non of the testator.

Action of trover to recover for the conversion of slaves, tried before Saunders, J., at the Fall Term, 1859, of Beaufort Superior Court.

Drewry Lanier, by his will, made in 1843, gave all his property, real and personal, to his wife, Elizabeth, for her life, and at her death to his three daughters, and to a child m ventre sa mere, at the time the will was written. Afterwards, and before his death, which took place in 1843, his wife had two other children, who were unprovided for, who are still living. His wife, Elizabeth, was appointed executrix, and having qualified and acted, she died in 1851, and the plaintiff *56was appointed administrator de bonis non of the testator Drewry.

The executrix, Elizabeth, took possession of the slaves in question as a part of the estate of the testator, and sold them to one John A. Gaylord, in the year 1848, who sold and conveyed them to the defendant, and the two have had possession of them ever since. The writ issued in March, 1855. It was proved by the subscribing witness to the bill of sale from the executrix to Gaylord, that she said, at the time of the sale, that she wanted to raise money to pay. the debts of the testator.

It was contended on behalf of the defendant, that the slaves were sold by Mrs. Lanier in the capacity of executrix, and that the full title passed by such a sale.

2ndly. That she assented to the legacy to her foi life, and that this wa.s an assent to the legacies in remainder, so that there was no estate in these slaves that could vest in the administrator de bonis non.

3rdly. That the defendant was protected by the statute of limitations.

The plaintiff contended that there was no evidence that Elizabeth Lanier sold in her capacity of executrix, or that there were any debts that made a sale necessary, and that such sale conveyed only her life-estate, and that the statute of limitations did not begin to run until after the appointment of the administrator de bonis non:

His Honor left it to the jury to say whether or not Elizabeth Lanier sold as executrix, and the jury found that she did •sell as executrix, and thereupon a verdict was entered for the defendant on the general issue.

Judgment for the defendant and appeal by the plaintiff.

Hodman, for the plaintiff.

Warren, for the defendant.

Battle, J.

The defense set up on the part of the defendant, is full and complete in any aspect in which the case can be *57viewed. If the widow of the testator sold the slaves in question in her capacity of executrix, as it was found by the jury that she did, it is conceded that the purchaser acquired an absolute title. But the plaintiff contends that she sold as legatee, for that the finding of the jury that she sold otherwise is without evidence, and, that having sold as legatee, the purchaser acquired only her life-estate, leaving an interest in her as executrix, which since her death, can be asserted by the plaintiff as administrator cle bonis non of her testator. The coun-'el admits that in ordinary cases, where the personal property is limited over after the death of the tenant for life, the assent of an executor or executrix, to the life-tenant, would be an assent also to the' ulterior legatee, and that, in such case, a sale of the absolute interest by the legatee for life, could not, after the death of such legatee, be questioned by an administrator do bonis non of the testator, but only by the ulterior legatee himself; Hailes v. Ingram, 6 Ired. Eq. 477; Quince v. Nixon, 6 Jones’ Rep. 289. He contends, however, that the rule is different where, by the provisions of the will, or the law, the executor has a duty to perform in relation to the property which requires that the title shall remain in him after the termination of the life-estate, and for this he cites Dunwoodie v. Carrington, 2 Oar. L. Repos. 409; Allen v. Watson, 1 Murph. Rep. 189. Those were cases where the duty was prescribed by the testator in his will. In the present case, the counsel insists that the duty is imposed by the statute which makes provision for children, born after the making of a will, and unprovided for by their parents. See Rev. Code, ch. 119, sec. 29, et seq. We are clearly of opinion that no such effect cun be given to the statute. It is true that the 30th section requires that the petition, or bill, which it directs to be filed, shall make the personal representative a party, but it also directs in the 37th section, that “the rights of such after-born children shall be a lien upon every part of the parent’s estate until his several share thereof shall be set apart.” There is no necessity, then, for holding that an assent by an executor to a life-estate shall not operate under the *58general rule, as an assent to the ulterior executory interests. In the present case, the argument is self-destructive. If the statute for the purpose of preserving (lie rights of the after-born children, prevented the assent of the executrix from passing the ulterior interest in the slaves, it must also, for the same reason, have operated to prevent the passing of the life-estate, and then the sale by the widow, who was both executrix and tenant for life, must have been made in her capacity of executrix, which of course conveyed an absolute title to the purchaser under whom the defendant claimed.

Pur Curiam,

Judgment affirmed.