
    Hairston v. Hall.
    [Friday, May 7, 1802.]
    Legacy — Recovery— Assent of Executor. —A legatee cannot recover a slave devised to him without proving the assent of the executor to the legacy.
    The Halls brought detinue against Hair-ston for some slaves: and upon the trial of the cause, the parties agreed a case, which stated, that the slaves had been devised by Sarah Hall to her son Nathan Hall, father of the plaintiffs, for life, and at his death to her grand-children as her said son should see cause to divide the said slaves among them, but if her said son should trade, sell or dispose, hire or lend any part thereof any where, or to any person during his life, or the same should be taken in consequence of any debt of his, that the slaves should be divided among the plaintiffs as soon as they were known to be out of the possession of the said Nathan, whom she appointed executor of her will. That they were taken from the possession of the said Nathan, whom she appointed executor of her will. That they were taken from the possession of the said Nathan, and sold as his absolute property, by virtue of an execution against his estate. That the said Nathan is still alive; and that it did not appear that the executor had given his consent to the suit, or to the legacy, or that any person had qualified as executor or administrator. And the questions reserved for the opinion of the Court, were, 1st. Whether the plaintiffs, as legatees *of Sarah, could maintain the action, without shewing the assent of the executor or administrator to the legacy? 2d. Whether the slaves could be sold, as the absolute property of the said Nathan, under the execution aforesaid? The District Court gave judgment for the plaintiffs, and the defendant appealed to this Court.
    Randolph, for the appellant.
    The legatees ought to have shewn the executor’s assent; for, if the son took possession without the assent of a qualified executor or administrator, he was a trespasser.
    Wickham, contra.
    The case is not liable to the general rule concerning the necessity of the executor’s assent. For, the will appointed the son sole executor and universal devisee of the estate; and, as he did not qualify as executor, he was in possession, in his own right, under the devise: Of course, he was as much subject to the condition, and as liable to the forfeiture, as if there had been an express assent obtained, or he had qualified as executor: For, he could not avoid his mal-conduct, by saying that, as the assent of a qualified executor was not obtained, his possession was tortious; especially as it was even competent to him to do every act as executor, but bring suits.
    Randolph, in reply.
    Perhaps it may be questionable if the devise over is not void: but, not being satisfied upon that point, I shall subipit it to the Court. As the son had not qualified as executor, his possession was tortious, and the rightful administrator might have maintained an action de bonis asportatis against him. It is no objection to say, that by this means, the son might avoid the condition and save the forfeiture, by taking possession and failing to qualify; because, the remainder men might have taken administration themselves, and thus have avoided the inconvenience.
    Cur. adv. vult.
    
      
      See monographicrióte on “Legacies and Devises.”
    
   *EYONS, Judge.

Delivered the resolution of the Court, that the judgment was erroneous and to be reversed, as it did not appear that there was any assent of the executor to the legacy.  