
    HENRY ARNOLD, EXR. &c. vs. ELIZA ARNOLD.
    An executor’s right to the personal property of his testator commences at the death of the testator, and from that time the Statute of Limitations begins to run against him.
    When a party claims a title in himself under a conveyance from one non compos mentis, and has possession under such alleged title, he does not hold as . bailee, but, although the original owner is not barred by such adverse possession on account of his incapacity, yet when his incapacity is removed, or he dies, leaving an executor, the Statute will begin to run.
    ' Appeal from the Superior Court of Law of Moore County, at the Special Term, in 1851, his Honor Judge Ellis, presiding.
    
      This is an action of Detinue for a slave, named Snkey, and the pleas are, non detinet, apd the Statute of Limitan tions. Upon the trial, the facts were these: Solomon Arnold was owner of the slave, and, on the 27th of July, 1842, he .made a deed of gift for her to his son, Howell Arnold, with a reservation for the life of Mary Arnold, the wife of Solomon : which deed was duly attested, proved and registered in August, 1842. Howell Arnold died in November,' 1843, without having the slave in his possession, but she was held by Solomon until his death, which happened in October, 1844. and then the present defendant, who is the widow of Howell, immediately took the slave into her possession, and hath held her ever since, claiming her as her own. Solomon Arnold left a will, made March 12th, 1838; in which he appointed his three sons, William S., Henry and Howell, executors; and it was proved in January, 1847, and Henry Arnold, the plaintiff in this suit, then qualified, alone, as executor. In the will, the testator bequeathed the slave, Sukey, to his wife, Mary, for her life, and afterwards to his two sons, William S. and Howell ■ and the said Mary died in April, 1846. In August, 1847, the plaintiff demanded the slave from the defendant, but she refused to give her up, and claimed the property in her; and in January, 1848, this action was brought. On the part of the plaintiff, evidence was given, that, at the time Solomon Arnold made the deed of gift to his son, he was of unsound mind, and had not capacity to make a contract: and, on the other side, evidence was given, that the donor was then of sound mind, and had capacity to make the deed. The Court instructed the Jury, amongst other things, that, supposing Solomon Arnold not to have had capacity to make the deed of gift, and that it was, for that” reason, not effectual to pass the title of the slave to his son Howell, then the plaintiff was entitled to, recover, notwithstanding the defendant had the adverse possession of the slave, from October, 1844, claiming, and using her as her own, for the reason, that the plaintiff’s action and right to the slave were not bound by such possession, because the plaintiff did not qualify as executor until January, 1847, and brought his suit withiu one year thereafter. The Jury found for the plaintiff, and the defendant appealed from the judgment.
    
      Strange-, Mendenhall and Kelly, for the plaintiff.
    
      I), Reed and W. Winslow, for the defendant.
   Ruffin, C. J.

The principle of the instruction is, that an executor gets no property in his testator’s goods, and cannot take them, nor sue for them, before getting letters testamentary. ]3ut the Court understands the law to be settled to the contrary. Although, in a case oí intestacy, a person, though entitled to the administration, cannot in termed-.die in the goods, before taking administration, except for special purposes, allowed by Statute, yet the writers on the law ot executors agree in stating, that an executor may, immediately upon the death of the testator, take possession of his effects, and bring suits, though he cannot declare before probate, for the technical reason, that he must make profert of his letters. And that position is sustained by ancient and undisputed judicial opinions. In Graysbrook v Fox, 1 Plow. 280, Dyer cites a case, in which an executor, before probate, commanded A to take certain goods of the testator out of the possession of B; and afterwards, the executor was allowed to refuse to administer, and administration was granted to B; and he then brought trespass against A for the taking, and it was held, that the justification, by the command of the executor, was good. And he lays it down as clear law, that executors are not called executors, in respect, only, that they actually execute, ' but in respect that they may execute: for, the death of the testator makes the testament, and, by his death', the property of the goods, which, was in him, is cast upon,-and-vested' in, the executor, who may, therefore, before probate,, take the goods, and dispose of them and he says, further, that-for that reason, if any one take the goods- before the executor seizes them, he shall have trespass or replevin against him, before probate. In Wankford v Wankford, 1 Salk. 381, Lord Holt repeated the same doctrine, that, before probate, an executor may seize the goods., As the plaintiff^ then, might, as the owner of the slave, have had redress, by taking her at any time after the death ol the father, or by biinging suit for her, the adverse possession of the defendant, tor more than three years after the plaintiff’s right- accrued, and action arose, bars him. An argument might, perhaps, have been made against the truth of this position-in our law, founded on the prohibition in the Act of 1715, ch. 10, sec. 4, under a penalty of £50, of any persons entering upon the administration of any deceased person’s estate, until obtaining administration or- letters testamentary. But, whatever influence that provision might pnce have-had, it cannot have now; because, in the revision of 1836,. the legislature, seeing the frequent convenience, and, indeed, the occasional necessity, for the executor’s doing some things before there was time to prove the will, modified the provision, by confining it to the administration of an intestate’s estate, before obtaining letters of administration. Rev. Sjtat. ch. 46, sec. 8. It is true, also, that it is held with- us, that, where two or more executors are appointed, those only,, who qualify, need join in an action as plaintiffs. But that does not affect the rights of ail the executors, until one shall prove the will; and when he does so, then, of course, he is executor by relation from the beginning, to the exclusion of the others,, until-, they, also, qualify. So, there was nb incapacity iri the plamtiff to assert his title to the slave, and, consequently, he is now barred.

'But it was further contended at the bar, that the defendant’s possession was not adverse, but that, upon the hypothesis in the instruction of the donor’s incapacity, which the verdict affirms, the deed was void, and the' defendant held as bailee, as if the gift had been oral from the parent to the child. Where an oral gift .of a slave is made to a child, it may, or may not, according to an express provision of the Act of 1806, be an advancement, at the election of the parent, at any time during his life, and, therefore, of necessity, the relation between them, during that period, is that of bailor and bailee, unless it be terminated by a demand and refusal, in which last case, the possession of the donee becomes adverse, — that is, he does not, thenceforward, hold for the donor upon his title, but for himself, upon a claim of title in himself. But, when one — whether a child or a stranger, takes possession of goods under a conveyance, which is proper, in form, to pass the title absolutely, it is clear, that his possession is not subsidiary to a title, real or supposed, in the maker of the conveyance, but purports to be the exclusive possession of the party himself, as the owner, and, consequently, it is adverse to the former owner, as to the rest of the world. It is true, the non compos donor or vendor is not barred by such a possession. But that is not because of the character of the possession, but of the party’s incapacity. For, admitting the possession to be adverse, the operation of the Statute of Limitations is suspended, while the incapacity exists. In fact, however, it is on a claim of right, and it is adverse, and, therefore, upon the non compos becoming' of sound memory, or upon his death, leaving an executor, the time.begins to run, and an action must be brought within the limited time from that event. If it t\>crc not so, there would be no bar from any length of time, when a vendor, though without the knowledge of the vendee, happened to be under mental infirmity, at the making of the contract.

Per Curiam. Judgment reversed, and venire de novo.  