
    Thomas A. Magee, Administrator de bonis non, vs. David Gregg.
    When a specific legacy has been given, if it appear affirmatively that there are no debts for which, the legacy could be made liable, the legatee is entitled to recover his legacy, whether the estate of the testator be finally settled up, or not; therefore, where in a suit by the administrator of the legatee against one claiming under a sale by the administrator de bonis non of the testator, the plaintiff aslced a witness whether there was not property of the testator sufficient to pay all debts of the estate without any abatement of the legacy sued for, it was held, that the question was a legal and proper one, and should be answered.
    By a decree of the probate court, an administrator de bonis non was authorized to sell all the personal estate of the testator, not already administered; it was held, that a slave, who had been specifically bequeathed by the testator, and had been delivered to the legatee, by the executor, was not included in such order of sale, and therefore no title to the slave would pass by a sale under such order.
    The assent of an executor to the possession of a legacy by the legatee, is not material to enable the legatee to maintain an action at law for his legacy in' this state; and it seems that the executor could not defend such action on the ground that there had been no final settlement of the estate, unless he could also show debts unsettled for which the property might be required; nor is any decree of the probate court, in favor of the legatee, necessary to enable him to maintain a suit for his legacy.
    M. died in 1837, bequeathing to his wife a life estate in a slave, and after her death the slave was to go to his son, who died without issue after the testator, but before his mother, who during her lifetime had possession of the slave; after her death, which occurred in 1844, the executor made a final settlement, in which he reported that he had divided the property according to the will. Held, that by making such return, and permitting the widow to hold for so long a time, the executor had assented to the legacy to her, and by assenting that she should take the life estate, he assented to the bequest over to the son.
    Even if the assent of an executor, to enable a legatee to maintain’an action for his legacy be necessary, if that assent has been given, it is wholly immaterial whether an administrator de bonis non, who has succeeded such executor, assents to the legacy or not.
    W. M. died in 1827, bequeathing a life estate in a slave to his wife, and the remainder over to his son. The wife, who died in 1844, (having outlived her son,) had possession of theslave during her lifetime. The executor of W. M. made a final settlement in 1845, in which he reported the property divided according to the will; O. M. administered on the estate of the son, and made his final settlement of it in 1840, when T. A. M. was appointed administrator de bonis non thereon ; S. having been appointed administrator de bonis non, cum testamento annexe, of W. M., obtained authority from the probate court to sell all the personal estate of W. M. not already administered, and under that authority sold a child of the slave referred to, which was bought by G.; the administrator de bonis non of the son sued G. for the slave, thus sold. Held, that the right of the administrator de bonis non, of the son, to recover the slave, could not be affected by the fact, that the same persons would inherit the estates both of W. M. and his son.
    An administrator was present at the sale of a slave belonging to his intestate, made by another person, and offered no objection to the sale. Held, that this circumstance would have no weight in preventing the recovery by the administrator, of the slave, from the purchaser. He might be estopped of his individual rights, but not deprived of his fiduciary right, by such implied assent.
    
      In error from the circuit court of Franklin county; Hon. Stanhope Posey, judge.
    Thomas A. Magee, administrator de bonis non of Philip Magee, deceased, and successor of Owen H. Magee in the administration, who the declaration alleged had rendered his final account as administrator, sued David Gregg in detinue, for a negro slave named Henry, late the property of Philip Magee. The defendant plead non detinet; a trial was had, and a verdict was rendered for the defendant.
    From the bill of exceptions it appears that the plaintiff below read to the jury the will of Willis Magee, the first clause of which was in part as follows: “I give and bequeath unto my beloved wife, five negroes, to wit; Tony, Nancy, Isaac, Cherry, and Rose, (and also other property which need not be enumerated,) to have, hold, and enjoy the property above specified during her natural life, and after her death to be divided equally among all my sons, with the exception hereinafter named with regard to Rose.” The testator, after disposing of_ the rest of his propert3r to his other children, proceeds as follows : “ To my son Philip I give three negroes, whose names are as follows; Marie, Jack, and Rose, after the death of his mother, to whom I have given a life estate in the said Rose,” <fcc. The testator appointed three of his sons, Lewis, Duncan, and Owen H., his executors.
    Elizabeth Magee testified that she knew Willis Magee during his lifetime, that after his death the woman Rose went into the possession of Asha Magee, his wife, who was now dead; that the slave Henry was the child of Rose, and that Philip Magee died before his mother.
    ' It was also in proof that Asha Magee died in 1844. Willis Magee died in 1827; the slave Henry was born after the death of Willis Magee. The woman Rose was proved to have been in the possession of Asha Magee from the time of her husband’s death in 1827, to the time of her own death in 1844; after Asha Magee’s death, Rose was sold with her children.
    Letters testamentary on the estate of Willis Magee were granted to Lewis and Duncan Magee in August, 1827. The final settlement of Duncan Magee, as executor, made on the 21st of January, 1845, with the probate court, was also read, in which he states that the negroes were divided according to the will. The final settlement of Owen H. Magee, administrator de bonis non of Philip Magee, made on the 21st of January, 1840, was also read.
    It was also proved that Gregg, the defendant, had been in possession of the slave Henry since February, 1845, having purchased him at a sale made by John P. Stewart, administrator de bonis non of Willis Magee. The plaintiff then closed his case.
    The defendant then introduced the following extract from the records of the January term of the probate court for 1845: “ Be it remembered on this day, Owen H. Magee, one of the executors named in the last will and testament of Willis Magee, deceased, comes into court and renounces his executorship, provided that letters of administration de bonis non, with the will annexed, be granted to John P. Stewart.
    “ Upon the assent given in open court by the heirs of Willis Magee, deceased, it is ordered that letters of administration de bonis non, with the will annexed of said Willis Magee, be granted to John P. Stewart, upon, &c. Whereupon the said John P. Stewart came into court, and executed bond as required, and took the oath prescribed by law.
    “ Upon the assent given in open court by the heirs of Willis Magee, deceased, it is ordered, that John P. Stewart, administrator de bonis non, with the will annexed of said Willis Magee, deceased, be authorized to sell all the personal estate of said decedent not already administered, upon a credit until the first day of January, 1846, upon giving notice of the time and place of sale as required by law.”
    It was also proved for the defendant by John P. Stewart, that there was no order of the probate court for the payment of legacies, or distribution of the estate of Willis Magee, deceased; that Asha Magee died before the final settlement of the executors of Willis Magee; and that he, John P. Stewart, administrator 
      de bonis non, cum testamento annexo, of Willis Magee, took the slave in controversy into possession as the property of Willis Magee; and that his administration was yet unsettled.
    Upon this proof, the plaintiff asked the witness whether there was not property of the estate of Willis.Magee sufficient to pay all debts against the estate, without any abatement of the legacy of the slave sued for; upon objection being made by the defendant, the court below would not allow the question to be answered, and exceptions were taken.
    The court then instructed the jury, that unless they believe from the evidence that the estate of Willis Magee, deceased, has been finally settled up, or that the probate court has rendered a decree in favor of plaintiff or his intestate for the property sued for in this action, or that Stewart, the administrator de bonis non, with the will annexed of Willis Magee, has given his answer to the plaintiff or his intestate, to have the property sued for in this action; the legal title to the same is prima, facie in Stewart, the administrator cwm testamento annexo, of Willis Magee, the testator, and not in the plaintiff, the administrator of Philip Magee, the legatee, and they must find for the defendant.
    The plaintiff below sued out this writ of error.
    
      George L. Potter, for plaintiff in error.
    The charge was palpably wrong. If the executors assented to the legacy, it is clear that there was no occasion for the assent of Stewart, administrator de bonis non.
    
    The proof was, that the property had been divided under the will; that Mrs. Magee, devisee for life, possessed the slave during her life. It was thus shown that the executors did assent to the legacy of Mrs. Magee, and this was an assent to the devise over to plaintiff’s intestate. 2 Lomax, Exec. 130.
    Such assent may be implied from slight circumstances. Ibid. 130. His permitting Mrs Magee to possess, the division under the will, the taking his own legacy, all were sufficient proof of assent.
    Assent of one co-executor is sufficient. Ibid. 132.
    After such assent, the legal title is vested in the legatee, and is absolute at law. Of course, a subsequent administrator could not claim or dispose of it, as Stewart attempts. Ibid. 134, 135.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This is an action of detinue for a slave brought by the plaintiff, as administrator de bonis non of Philip Magee. It appears that Willis Magee, the father of Philip, died in 1827. By his "will he gave to his wife a life estate in certain slaves, amongst others Rose, the mother of the boy in controversy, and after his wife’s death he gave Rose to his son Philip, who died after the testator, but before the death of his mother, without heirs. By the will, the testator appointed his three sons, Lewis, Owen, and Duncan, executors, two of whom seem to have qualified, one of whom, probably, was the active manager of the estate. The wife died in 1844, having had possession of Rose during her lifetime. The executor, Duncan, made a final settlement in 1845, in which he reports the property divided according to the will.

Owen H. Magee, first administered on the estate of Philip, and made his final settlement thereof in Jatraary, 1840, after which the plaintiff was appointed administrator de bonis non.

J. P. Stewart was appointed administrator de bonis non on the estate of Willis Magee, but at what time does not appear, the date being blank in the record. One of the executors had resigned, and the other renounced.

Why Owen H. Magee and Stewart should have administered on these two estates, after they had been finally settled, are circumstances not explained, and, to say the least, the necessity for such course is not perceived.

The defendant claims the slave, under a sale made by Stewart, as the administrator of Willis Magee, which seems to have been ordered by the probate court, “upon the assent given in open court of the heirs of Willis Magee.” By the order, he was authorized to sell all the personal estate, not already administered.

If it be true that the executor of Willis Magee had divided the property according to the will, as he reported, that was a full administration, and this order of the court did not reach it of course, as it was only an authority to sell the unadministered property. When a legatee receives his legacy, his title is complete, subject only to a liability to refund, in case of debts. It is no longer the property of the estate.

By returning, that he had divided the property, and by permitting Mrs. Magee to hold for so long a time, the executor had assented to the legacy to her, if such assent was necessary, (Tol. Law of Exec. 309; ) and by assenting that Mrs. Magee should take the life estate, he assented to the bequest over to Philip Magee. Ib. 310. The title of the estate was, therefore, devested.

But in the case of Worten, adm’r. v. Howard, 2 S. & M. 527, it was decided that the law, in relation to the assent of the executor, is materially changed by our statute; that a legatee may maintain an action at law for his legacy without the assent of the executor, and that the executor’s only defence is, that the property is necessary for the payment of debts; or, that a final settlement has not been made. Probably the executor could not defend on the ground that there had been no final settlement, unless he could also show debts unpaid, for which the property might be necessary.

By these principles, the rulings of the court may be tried. The instruction was, that unless the jury believed from the evidence that the estate of Willis Magee had been finally settled, or that the probate court had rendered a decree in favor of the plaintiff or his intestate for the property sued for, or that Stewart, the administrator de bonis non of Willis Magee, had given his assent that the plaintiff or his intestate should have the property, the legal title to the same is prima facie in Stewart, the administrator, and not in plaintiff as administrator of Philip Magee, and they should find for the defendant. This charge contains three propositions in the disjunctive, and assuming that they each contained a correct principle, the conclusion is a non sequitur. But at least, two out of the three propositions contain error. On the authority of Worten v. Howard, no decree of the probate court, in favor of the plaintiff or his intestate, was necessary; and, assuming the assent of the executor to be necessary, the assent of Stewart, the administrator de bonis non, was an immaterial circumstance, if the executor had given his assent, as he did in this instance. In regard to the necessity of a final settlement of the estate, before a legatee is entitled to his legacy, it may be remarked, that by statute, H. & H. Dig. 406, sec. 71, he is entitled to receive it after twelve months, on giving bond to refund. The charge, then, was in no respect strictly correct, and was calculated to mislead the jury. If this property could be regarded as a part of Willis Magee’s estate, that estate had been in a course of settlement for about twenty-nine years. After that lapse of time, it would be a difficult matter for an administrator to justify the withholding of property, because a final settlement had not been made. Besides, when a specific legacy has been given, a final settlement of the estate is entirely unimportant, if it appear affirmatively that there are no debts, for which the legacy could be made liable. On this principle the court erred in another particular. 'When the defendant had closed his testimony, the plaintiff’s counsel asked the witness, Stewart, who had been introduced by defendant, whether there was not property of the estate of Willis Magee sufficient to pay all debts against said estate, without any abatement of the legacy of the slave sued for, which the court refused to allow the witness to answer. Surely nothing but debts of the testator can justify an executor, or administrator de bonis non, in selling a specific legacy; and it was, therefore, proper that the legatee or his representative should show, in a controversy of this sort, that the legacy was not necessary for the payment of debts. The legatee derives his title from the will, and it is subject to be defeated only on one condition, the existence of debts; the administrator who undertakes to devest it, must show the necessity for doing so.

It is said that the plaintiff cannot recover, because he was present at the sale of the slave made by Stewart, and made no objection. We do not think that circumstance entitled to any weight in this controversy. By implied assent, he might be estopped as to his individual rights, but. not deprived of his fiduciary rights.

It has been also said that the plaintiff should not recover, because the same persons inherit both the estates of Willis and Philip Magee. That does not alter the legal rights of the plaintiff. In that view of the case, this proceeding seems to be unnecessary; but that is a matter with which we have no concern ; we must, decide on legal rights as they are presented.

Judgment reversed, and cause remanded.  