
    James H. Johns ads. Elizabeth Johns.
    Where the defendant was executor of the plaintiff’s husband, and the ■ ■ plaintiff had a life estate, under the will, in the whole estate, and she continued to live on the plantation, where all the estate was, and had tne same in use, the Court Held, that the executor had a right to sell a mare and colt to pay the debts of the testator, and that the widow remaining on the place, where she had a right to be, and where tes-tutor’s property ought to be kept, and of which she ought to have, had the use, could not be regarded as an unconditional assent to her taking the legacy, so as to divest the executor of the right of possession.
    Th-IS was an action on the case. It appeared that the plaintiff was the widow of defendant’s testator. The whole estate had been left to her for life. She had continued in possession of the whole property for two years after the death of her husband. Among other things she had possession of a mare and colt, which the executor ordered to be sold to satisfy an execution against the estate. The amount was nine dollars, which she offered to pay, but he refused, saying that there was another debt; and he-further proved that he had satisfied another execution to the' amount of §98 and costs. ,
    A non-suit was applied for and refused by the Judge on the circuit. The case was then submitted to the jury, when a verdict was rendered for the plaintiff.
    The motion for a non-suit was now renewed in this Court, and for a new trial should it be refused.
   Mr. Justice Huger

delivered the opinion of the Court.

At the instant of a testator’s death, the interest in all the personal property he owned vests in his executor. He has an absolute dominion over it, which cannot be destroyed but by operation of law or by some act of his own. (Toller, 169, 239.) He is bound to pay the debts; and this is a paramount' duty to satisfying the legacies. The plaintiff in this case is only a legatee, and ought to have been postponed to the creditors. Nor could she as legatee, (even had there been no debts,) possess herself of the property, without the assent of the executor. If she had, he might have maintained an action' of trespass against her for sc doing. (See Toller, 240, and Bac. Title Ex’r and Adm’r L. 3, 84, and Dyer, 254.) It is contended, however, in this case, that the executor had assented to the possession-of the legatee, and that his dominion had consequently ceased, and could not be resumed. An executor like every other holder of property, may sell or relinquish possession of it. But his having so done, must, as in every other case, be proved; and the proof must be governed by the □ame rules, as in other cases. It is laid down in Toiler's Law of Ex'r. that a very slight assent on the part of an executor will vest a legacy; and so will very slight evidence, satisfy the mind in every case of that having been done which ought to have been done. In this case the debts had not been paid, and as plaintiff was sole legatee, if her continuance 'on the plantation, where all the assets remained, were a delivery of the property in question, it was a delivery of all the testator had, which would have been wrong, as it was the duty of the executor to retain sufficient to satisfy the debts. The executor had no right to turn the widow out of doors; her remaining then on the plantation, where the cattle, horses, &c. of the testator ought to be kept, and of the use of which she ought not to have been deprived, cannot be regarded as an uncondition-i al assent to her taking the legacy.

The mare and colt being as much under his control ass his own property, the plaintiff can no more sustain this action than she could have sustained one for any part of defendant’s own property.

The decision, of the Circuit Court must therefore be set aside, and a non-suit ordered.

Justices Johnson and Richardson, concurred.

Mr. justice Gantt,

disssnting, delivered the following opinion :

This was an action on the case, brought against the defendant, for a wrong done in taking, without any lawful authority, a mare and colt, and causing the same to he sold, aggravated by the circumstance of its having been done under pretence of legal authority.

Of all the kinds of force which are practised in society. that is the most reprehensible which is done under the mask of the law, when, in truth, the object is to gratify the malice or promote the gain of the person who commits it. Precisely of this complexion did this case appear before me on the trial of it.

The defendant was an executor under the will of Oba*-diah Johns, who died, leaving a considerable estate, and little or nowise incumbered. By his will he bequeathed for life the principal part of his property to the plaintiff, bis widow, for the support of herself and a number of minor children. The mare, <he subject matter of the present action* had been in the possession of the plaintiff upwards of two years* and essentially necessary for the support of the family as a work beast. During that time she had been put to a horse and had a colt. '

This mare- was levied on to satisfy a small debt due from the estate. The plaintiff in vain urged that she was willing to pay the debt. In vain did she make a tender of the money for that purpose. The defendant said he would sell at all events; he did so, and became the purchaser. It did not appear that any other debt was due from the estate.

Now, it is said that the executor had a power by law to do this, and that the plaintiff was remediless at law; but this I deny, when once the executor has assented to the legacy. Assumpsit will lie for a specific legacy after the executor has assented; and I maintain with confidence, that the only question in this case was* whether the executor had assented or not to the plaintiff’s taking possession of this mare under the will; and that was a question which the jury alone could decide, and the case was submitted to them on that specific ground.

They were told of the legal right which an executor' possessed by law. That his control over the property could not be interfered with, and that a legatee could not legally obtain possession without the assent of the executor. But that when this was given, he had no right to retake into his possession property thus given up to the legal owner. That the. bequest transferred an inchoate property to the legatee* which was perfected by the assent of the executor. That the property devolved upon the executor for the payment of debts in the first place, and that before he could safely pay legacies, he was bound to see ■whether, independent of them, there was a fund sufficient for the demands of creditors. That the property became absolutely vested by the executor’s assent, &c. ,

Butler.and Butler, for the motion-

Brooks, contra.

Now the assent of the executor may be inferred either from expressions or acts ; as to congratulate the legatee on his legacy, or if he requests the legatee to dispose of a house bequeathed to him. No particular form of assent has been prescribed by law. The assent may be expressed or implied, absolute or conditional. A very slight assent is held sufficient, (1 Vern. 94, 460. 4 Bac. Abr. 405.) Here the mare was called and known as the plaintiff’s; she had remained with her for two years, and every presumption growing out of the circumstances that the assent of the executor accompanied the possession. In a freak, and to gratify his malevolent disposition against a ■mother, charged with the support and protection of a family, this executor seizes upon a favorite ánimal of the life owner, and in despite of every persuasion, and without any the least necessity, he proceeds with violence to sell, under the pitiful pretence of satisfying a debt due, and which his mother offered to pay up. The owner may, in such case, maintain an action at law for the wrong dene. In 4 Bac. 445, it is said, an action at law lies against an executor to recover a specific chattel bequeathed, after his assent to the bequest; a fortiori will an action upon the case lie, after his assent, and possession given of the legacy. I thought on the trial, and stilfcontinue of that opinion, that the evidence which the trial furnished was abundantly sufficient to shew the implied assent of the executor. That \yas a question too for the jury, and distinctly submitted; and their verdict having found the fact and afforded redress for an outrage of a flagrant nature, I think this Court have no right to interfere with it.  