
    M’Donald vs. M’Donald & Baker.
    Since the passage of the act of North Carolina, of 1806, (which re" quires gifts of slaves to be in writing,) ' no presumption can arise that slaves sent by a father-in-law to a son-in-law was intended as a gift.
    In such case, it will be presumed, (in the absence of proof to the contrary,) that the possession of the son-in-law was consistent with that •of his father-in-law, and a possession adverse to the right of the father-in-law, cannot be presumed, from the mere fact, that the son-in-law retained possession of the slave.
    When slaves are loaned to a son-in-law, his possession thereafter is, (in the above absence of proof,) a continuation of the loan. The act of limitations, therefore, will not form a bar in such case.
    When a verbal gift has been proved, although it is void by the act of 1806, yet the possession, from the time of the gift is adverse, and the act of limitations will, in such case, form a bar to the plaintiff’s recovery.
    When property is bequeathed by will, and it is retained by the executor, of possession which he holds as executor, upon a bill filed by the legatee, for the recovery of the legacy, the act of limitations will not be a bar to the recovery of the legacy.
    But if an action at law can be maintained to recover the legacy, then the act of limitations may he pleaded.
    In 1835, Donald M’Donald died in the State of North Carolina, having first made his will, wherein he bequeathed to his wife, the complainant, all his real and personal property during her life. His son, Norman M’Donald, and his son-in-law, Alexander Balter, were appointed executors, proved the will, and took upon them the trust of executing the same. Alexander Balter has possession of three negroes, Washington, Lucy and Europe. The proof is, that Washington was sent to Balter, hy the testator, in 1822 or 1823, Lucy and Europe came to his possession after the testator’s death, and he held them as executor. The complainant made a verbal gift of the hoy Europe to Baker, and he has claimed and possessed him ever since as his own. A decree for complainant was rendered for all the slaves, except Europe.
    
      
      V. D. Barry, for complainant.
    1. Defendant cannot claim by gift, because there being no evidence by deed, proved and registered,' proof of a gift failed. The presumption, therefore, arises, that no gift was intended, or a writing would have been made. Act of North Carolina,"of Í.806, ch. —, sec. 1. This statute must have been passed, to destroy the presumption of gifts of slaves in marriage, formerly established by the courts. 1 Hayw. Rep. 2, Farrel vs. Perry.
    2. Defendant must, therefore, rest his title upon an adverse possession of three years, according to the statute of limitations, without gift or any other color of title. Adverse possession is never presumed, from the mere fact of peaceable possession. Angelí on Lim, 82, 83, 87. When property is delivered by one to another, to be kept till called for, adverse possession does not commence till demand made, or some open act of exclusive ownership. Angelí on Lim. 86, 102. In case of trusts, if a trustee deny the right of cesti que trust, and assume absolute ownership, the statute will bar, not otherwise. Angelí on Lim. 136.
    3. A devisee cannot disappoint the will, even if it disposes of his property; but must either convey, according to the devise, or renounce the benefit of it, pro tanto. 1 Ves. jun. 523, Blake vs. Bunbury: 2 Do. 372, Whistler vs. Webster: 3 Do. 191, Wilson vs. Mount: 4 Do. 531, Rutter vs. Maclean: 5 Do. 218, Woollen vs. Tan-' ner: 9 Do. 533, Andrews vs. Trinity Hall, Cambridge: 10 Do. 609, 316, Broome vs. Monck.
    These cases establish, that having proved the will, and receiving a benefit under it, he has elected to abide by its dispositions. He therefore holds as executor.
    4. An executor cannot plead the statute of limitations against a legatee. Ang. on Lim. 356: 7 John. Ch. Rep. 136, Kane vs; Bloodgood: 3 Do. 190, Decouche vs. Savetier: 1 Do. 313, Arden vs. Arden.
    
      5. The case of Hardeson vs. Hays, 4 Yerg. R. 507, , . • . i . f allows the statute of limitations to give title without deed, when an adverse possession is evidenced by proof of a gift; not when there is no proof of possession, exclusive of, and inconsistent with, the right of the testator.
    
      W. C. Dunlap and Barton, for defendants,
    The case of Hardeson vs. Hays, 4 Yerger’s. Reports, 507, decides the same principle contended for by the defendant Baker. Mary M’Dugald’s testimony shows that the boy Washington was sent to Baker by Donald M’Donald. The testimony of Elizabeth Ray shows the gift of Washington. N. M. Shaw proves the gift of Europe to Baker by complainant. In 4 Yerg. Rep. 174, Porter vs. Badget, the court decides that three years adverse possession of personal property vest the right in the possessor. If a , trustee take possession of the property as his own, during the right of the cestui que trust, holding the property adversely, lapse of time, from that period, may constitute a bar in equity. 4 Yerg. Rep. 106, Terrell, vs. Murray. Here also the remedy at 1'aw in trover, or by petition, under the act of 1762, is concurrent at least with the remedy in equity; if so, the statute of limitations will operate to bar the claim: Kane vs. Blood-good, 7 John. Ch. Rep. 90.
   GREEN, J.

delivered the opinion of the court.

The first question in this case is, as to the operation of die statute of limitation in relation to the boy Washington. By an act of North Carolina, passed in 1806, ch. —, sec. 1, it is declared that all gifts of slaves shall be void, unless made in writing, duly proved and recorded. The fact, therefore, that Washington was sent to Baker, by die old man M’Donald, without any thing having been said as to the terms upon which Baker was to hold him, cannot be construed as a gift, and confer on Baker m. right to the negroe, as was formerly held in North Carolina. (1 Hay. Rep. 2, Ferrill vs. Perry.) The act of 1806 was intended to prevent such presumption. Inasmuch, therefore, as the defendant Baker could not presume that a gift was intended, when the boy Washington was sent to him, it is to be presumed, in the absence of all evidence to the contrary, that the possession he held of Washington was consistent with the title of old M’Donald. There was no proof that Baker held Washington, adversely to M’Donald, and such adverse possession cannot be presumed from the mere fact, that he was permitted to remain at his house. Ang. on Lim. 82, 87. For as die law forbad the idea, that Washington was given to Baker, when he was first sent, he must have been put in the hands of Baker as a loan only; and his peaceable possession after-wards, was only a continuation of the loan, and die possession of Baker was the possession of M’Donald, and not adverse to Iris right. The statute of limitations therefore has no application.

As to the boy Europe, the proof is that the complainant made a gift of her life estate in him to Baker. This gift, although not good to vest the title, because of the act of 1806, yet it changed the character of Balter’s possession, which from that time became adverse, and having so possessed said negro for more than three years before the bill was filed, claiming him as his own, the statute of hmitations is a bar to the complainant’s recovery of him. Hardeson vs. Hays, 5 Yerg. Rep. 507.

Balter’s possession of the negroes Washington and Lucy, since he was qualified as executor of M’Donald’s will, has been held in his official character. He cannot resist the bill of the legatee, upon the ground of such possession, for an executor cannot be protected by the statute of limitations against a legatee. Angel on Lim. 356: 7 John. Ch. Rep. 126, Kane vs. Bloodgood. The reason why an executor may plead the statute of limitations in New York against a legatee, as is shown by- the case cited, is because of a statute of that State, giving an action at law for the recovery of legacies; and as the statute might be pleaded to such action, it follows by the established rule of courts of equity, that it will avail ■ against a bill, which may be brought for the recovery of the same right. But here we have no such statute, and the legacy can only be recovered in a court of equity. As the executor is an express trustee and can only be .sued by the legatee in a court of chancery, the statute of limitations has no application. Armstrong’s heirs vs. Campbell, 3 Yerg. Rep. Upon the whole the decree of the circuit court will be affirmed.

Decree affirmed.  