
    No. 35.
    James Bates, Admr. de bonis non, &c. plaintiff in error, vs. John Woolfolk, defendant in error.
    ][1.] Where a testator bequeathed to his wife a'Certain negro slave, so long as she should reside on a particular plantation, and made no other disposition of iaer, and the negro was duly-distributed to the legatees under the will-: Held, that an administrator de bonis non, with the will annexed, could not recover possession of the negro after the death of the legatee.
    Trover, in Muscogee Superior 'Court, tried before Judge Alexander, May Term, 184*8.
    The case -was tried upon the general issue, and the plea of the Statute of limitations. The plaintiff on the trial,proved the identity of the slaves, the subject-of the action, and the conversion by the defendant, and also his (the plaintiff’s;) -title, under and by virtue of his letters of administration, -which -were granted on the 2d day of March, 1846.
    The negroes, the subject -of -the action, -were -Chloe, mentioned in the first item -of testator’s will, -and her-children, which-is as follows : ■“ First, I give and bequeath unto nay -wife, Esther-, four hundred and eighty dollars, and I also require my son-in-law John Wh-igham, to build for her a good comfortable -house-on the plantation where I now reside, to be used -and occupied by her during her life,-or-as long-as she may choose; and mysaidisonin-law is to furnish her yearly, and every year during her life, with forty bushels-of corn, and -one .hundred w-eigbt of clean cotton. I -do further .give unto my wife, two beds and furniture one large painted pine -chest; -one cup-board, .a-nd one table, and three chairs. I do also give further, it© my wife,-during her residence -on -.said plantation, a .small .negro .girl,-Chloe, and (forty weight of soap, and five bushels-of salt, to be furnished her out of my estate, every year, and four hundred weight of ,pork, and one barrel of flour, yearly, and .every year.” No other portion of said will, referred to, or mentioned the negro, 'Chloe.
    Several executors were named in the will, some of whom qualified on the 2d day of July, 1810. It was proven, that-the negro, Chloe, was distributed to Esther McNeely, under the will of the testator, and that about a year after the -testator’s -death, -his widow, Esther McNeely, the .legatee named in said first item, removed from the said plantation, where-testator resided at the time of making said will, and of Ms death ; and that the qualified executor was living at the time of her said removal.
    The defendant proved his purchase of the slaves sued for, in the year 1837, and paid a full and valuable consideration for them, and that he had had them in his possession ever since. The suit was brought on the 25th day of March, 1846.
    It was insisted by the counsel for the defendant, that a qualified executor being in life at the time of her said removal from testator’s said residence, the right of action accrued to such executor, and consequently, the Statute of limitations commenced to run, and the plaintiff having no more rights than his predecessor, the executor, would have had if he had been living, was barred by the Statute of limitations.
    The testimony having closed, and the cause submitted, the Court below charged the jury, that under the letters of administration, and on account of the form of the declaration in this case, the said plaintiff could not legally assert or exercise any more power over the property belonging to the estate of Andrew Mc-Neely, and which was undisposed of by said will, and unadministered, than could John Whigham, one of said executors of said will, and that as were the letters of administration and said declaration, the said plaintiff stood before this Court in the same situation as would the said John Whigham, the executor, if he were in life and had brought the action ; and that if they believed, that more than four years had ela.psed since the said John Whigham had qualified, or since the qualification of any one of the executors named in the will, and since said defendant had converted said negroes, that then the executor or executors could not recover Chloe and her said children, and that said plaintiff, standing in their place and stead, could not in the present action, hut was also barred of his remedy by the Statute of limitations; and that as was the action, the Statute of limitations commenced to run against said plaintiff, when it commenced to run against the executor or executors. To the -charge, thus given, the plaintiff excepted.
    The plaintiff then requested the Court to charge the jury, that said plaintiff had, by virtue of his letters, all the power and rights of a general administrator ; and that if Chloe and her children, at the commencement of this suit, belonged to the estate of Andrew McNeely, and was not disposed of by the said will, and had not been administered, that then, said plaintiff was entitled to recover. The Court refused to give the said charge as requested, but charged the jury, that whatever might be the construction to be placed on said letters, that in the form of the present action, the plaintiff occupied the place and position before the Court, as would the said John Whigham, if he had sued for said negroes; and that the Statute of limitations began to run against the executor, qualified when Esther McNeely, the widow of the testator, removed from the premises mentioned in said will; and that if more than four years had elapsed since her removal, and since the defendant had them in his possession, claiming them as his own, that then said executor was barred of a recovery by the Statute, and the present plaintiff, occupying the place of the executor, in this action, was also barred of a recovery. To the refusal of the Court to charge as requested, and to the charge as given, the plaintiff excepted.
    The plaintiff further requested the Court to charge the jury, that if they believed from the evidence that said negro, Chloe, and the children were hers, and belonged to the estate of Andrew McNeely, and, had not been administered, and were undisposed of by will as aforesaid, that the Statute of limitations did not commence to run against plaintiff, until his said letters of administration were granted unto the plaintiff; which charge, as requested, the Court also refused to give, and the plaintiff thereupon excepted.
    Johnson & Williams, for plaintiff in error, cited—
    1 Chitty Pl. 284. 1 Saunders, 111. 4 Reports, 28. 2 East, Doe vs. Guy, Summers' Ed. 71. 2 Williams’ Exrs. 987, 1373. 1 Washington R. Bumly vs. Lambert, 308. 6 Pickering, 126. 2 Hill, Alexander vs. Williams, 522. 1 Binney, Bemuth vs. Bachelor, 63. 3 Binney, Wilson vs. Wilson, 557. Prince’s Digest, 221, 224, 226, 233. 2 Story E. Ju. 1208. 2 Blackstone Com. 494. 3 Binney, 569. 1 Swift, 457. 4 Washington, 631. Angell on Limitations, 55. 3 Stewart, 172. 1 Kelly, 379, 538. 4 Harris & Johnson, 393.
    Jones, .Benning & Jones, and Hines Holt, for defendant in error.
   By the Court.

Warmer, J.

delivering the opinion.

This- was- an- action of trover, brought by the plaintiff as the administrator cfe bonis non with- fcbe will-annexed, of Andrew Mc-Neely, deceased, against! tthe-defendanti, to recover a negro named5 Chloe, and ber oM-ldiren. From- the facts, as they appear on the- fbce* of'this- record, the plaintiff was clearly not entitled to recover tlie negroes, in- the- character in which* lie- sued*.

The negro, Chl’oe, was bequeathed to the wife of the testator, during her residence on a- particular plantation*, and- no other disposition* made- of her by th© will1 whatever. It appears that some* of the* executors to- the will qualified, and distributed the negro*, Chloe, to the* legatee, Mrs-. McNeely; as Mrs. Turner, one of the witnesses, states, Mrs. McNeely had the property in- her possession, wider the -wild of Andrew McNeely, the grand-father of the witness. When Chloe- was distributed to Mrs-. Esther McNeely, the legatee under the- will, by tlie executors) the will- was executed-,, so- Jar as the disposition* of that part of the- testator’s* property was-concerned; in other-words, that portion' of the testator’s- estate* wasfulily. administered, according toi the directions of his* will. The* plaintiff? sues as the administrator da bonis non, with the will annexed. The office and duty of am administrator d'e bonis non,, with, the will annexed;. is> Co administer suchi portion of the testator’s- estate, as has not been administered under the directions of bis will, or as we said in Thomas vs. Hardwick, “ be is appointed to finish a business already begun, and in most* cases partially performed, “Sofar as-the negro Chloe is concerned, she has been fully administered, in accordance with the wil-l* of the testator; and: the plaintiff has no right to recover possession of her, for the-purpose of making any further adminisiratiomundar the wilVofthe testator.. What rights a general administrator on* tlie estate of Andrew McNeely might have in. regard1 to-the property; we express no-opinion.

This view of the’case being fatal to-tlie plaintiff’s-right to recover, in the character in which lie has brought bis suit, it is not necessary to consider the Statute of limitations. Let the judgment of the Court below stand affirmed.  