
    GENERAL COURT,
    MAY TERM, 1801.
    Wilson’s Ex’x. vs. Rine.
    Whether notos, placed by a testator for collection in the hands ofthe husband of his daughter, were intended to be bequeathed to her under the following clause, viz* “1 gire and bequeath unto my daughter; all the property she has in her possession, belonging to me, of every description, at the time of my deeeasé for ever?” Held* that it was the province of the jury to determine whether by the will and evidence m the cause the notes were intended by the testator as the property bequeathed to his daughter
    A general legacy does not vest the property bequeathed in the legatee; without tile asaeht of the Gxecutor, and fché executor may maintain trover for such property against-ho legatee
    Whether or not q bequest to the daughter is good evidence to the jury m mitigation of damages in an action of trover Iby the executrix against the husband of the daughter, for the property bequeathed rf there is no proof •of an assent by the executrix to such legacy
    Ai>i>eae from Frederick county court. It was an action of trover for notes or single bills. The general issue pleaded.
    1. The plaintiff, (now appellant,) át the trial, proved that the notes mentioned in the declaration were put into the hands of the defendant, (now appellee,) by Jacob Wilson, the plaintiff's testator, to be collected for and paid over to him the testator. That the plaintiff, after the death of the testator and after letters testamentary were granted to her, and before this suit was brought, demanded the said notes from the defendant, who admitted them to be in his possession, but refused to deliver them up, claiming them as his own property, bequeathed to his wife Priscilla, by the will of the said testator. The defendant proved, that Oil the Í6th of September Í797, the testator declared to a witness, that as Priscilla, the wife of Sine, (the defendant,) was his only daughter, he meant to do for her all iie could, or words to that effect; that lie had the day before, put some writings into the hands ofthe said Bine; that all they had in their hands was their right and title; that he meant to give it to them, as the witness should see, but that he had not so told his son-in-law and daughter; that it was his intention they should have absolutely all they had in their hands; that ho expected to set out for Baltimore, where he lived, the next day, and that he did not know that he should live to come back; if he did not, he intended to give them all they then had in their hands; and if he did come back, he would do more for them. That he accordingly, on the next day, or two days after, did go from Frederick county, where this conversation, happened, to Baltimore, and there died in the month of October 1797. The defendant then offered to read to the jury the will of the said Jacob Wilson, the testator, which was duly executed in the presence of two witnesses, and proved according to law, to which the plaintiff objected. But the county court, (Potts, Ch. J.) overruled the objection.
    The jury are to determine whether or not certain notes were intended to he bequeathed by a will.
    The assent of the executor is necessary to vest a legacy in the legatee, and prooí of such assent is to be adduced, to the jury
    Whether or not a bequest of a legacy is evidence tn mitigation of damages in an action of trover by the executor, where there haa been no assent to the legacy?
    2. The defendant then read in evidence to the jury, the will of the said Wilson, dated the 6th of October 1797, in which is the following bequest, viz. “I give «‘and bequeath unto my daughter Priscilla, all the. «‘property she has in her possession belonging to me, «‘of every description, at the time of my decease, for “ever.5’ The plaintiff then prayed the opinion of the court, and their direction to the jury, that by the said will the notes in the declaration mentioned were not bequeathed to the defendant’s wife. The county court, (Potts, Ch. J.) refused to give such opinion and di» rection, but directed the jury, that it was their province to determine, whether by the will aforesaid, and evidence in the cause, the notes in the declaration mentioned, were intended by the testator as the property bequeathed to the wife of the defendant in his will.
    3. The plaintiff then prayed the opinion of the court, and their direction to the jury, that unless the defendant could prove an assent on the part of the executrix to the legacy bequeathed to the said defendant’s Wife, that in that case, even if the notes, mentioned ; in the declaration, were bequeathed to the defendant’s; wife, the said notes belonged to the plaintiff; and that j the said bequest to 'the defendant’s wife could not faei offered in evidence to the jury in mitigation of damages. But the county court, (Potts, Ch. J.) was of opinion, and so directed the jury, that the said bequest to the defendant’s wife was good evidence to the jury in mitigation of damages, even without an assent by the executrix aforesaid proved, unless the plaintiff could prove that there were debts or legacies due from the estate of said Jacob Wilson, deceased, for the payment and satisfaction of which there’was not sufficient property of the deceased, independent of the debts due by the notes mentioned in the declaration. The court further directed the jury, that upon the case stated, the plaintiff was entitled to their verdict, unless the defendant shewed a property in the notes in him derived 'otherwise than under the will aforesaid: But that the several pieces of evidence offered were proper to be considered by them in ascertaining the damages to be given by them for the plaintiff. The plaintiff excepted, and the whole of the preceding facts were included in one bill of exceptions. Verdict for the plaintiff, and damages assessed to 541 Os Id, current money. The principal sum claimed by the notes was 1811 12s 2d current money, besides interest, the plaintiff therefore appealed from the judgment rendered in his favour opon the verdict, to this court.
    
      Mason and Shaaff, for the Appellant.
    
      J. Dorsey, for the Appellee.
   The General Court were of opinion, that the assent of the executrix was necessary to vest the legacy in the legatee, Priscilla, the wife of the appel-lee, and that proof of such assent ought to have been adduced to the juryj and that the court below erred in not giving the direction thereupon prayed. The judgment of the county court was therefore reversed, and the record ordered to be remitted with a writ of procedendo.  