
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1810.
    Jackson Harley, and Nanny, his Wife, Executrix of Joseph Hays, deceased, v. William Bates, and Susannah, his Wife.
    Where a testator gave a slave to his wife, and executrix, for her life, remainder over, &c., and the executrix, the wife, afterwards sold and transferred her life estate to another; tills act of disposal, on the part of the wife as legatee, was held to be a sufficient assent as executrix to the vesting of the legacy, and which assent could not afterwards he recalled, because the bequest for life having’ vested in possession by the disposal of the chattel to the purchaser from the wife as legatee, and he. delivery as executrix, the estate in remainder vested in possession at the same time in the remainder man, as an executory hequest; and that the chattel could not be reclaimed as assets unadministered.
    Motion fora new trial. Action on the case for harboring certain negro slaves, the property of the Joseph Hays’ estate, tried before Smith, J., in Barnwell district, in the fall of 1808. It appeared in evidence, that Joseph Hays, by his last will and testament in 1799, made the following, among other bequests. “I do lend to my loving wife Anna, during her natural life, 'all my estate, real and personal; and after her decease to be divided amongst my children, as follows: I give unto my son, John Hays, James, Sarah, his wife, Alney, and Csesar, and the waggon and g-eers, and my saddle, one half of my plantation of 514 acres, and half the stock of cattle and hogs, during his natural life, and after his decease to be divided amongst his children.” It also appeared, that at the death of Joseph Hays, his son John whs married to the defendant, Susannah, who, after his death, intermarried with Bates, and had two children by him. The testator left his wife Anna, and his daughter Nancy, his executrixes. His son John died before Anna, who took upon herself the burthen of the execution of the will; and delivered the negro slaves in question to Susannah Hays, the defendant, then the widow of John Hays, together with an instrument of writing in the following woh'ds: “ The State of South Carolina, Barnwell district. Know all men by these presents, that I, Anna Hays, of the State and district aforesaid, do, for the consideration of $25 annu. ity relinquish all right and claim of the negroes left by Joseph Hays, deceased, to his son John, during my life, to Susannah Hays, this 11th July, 1801. Signed, Anna Hays.” The executrix, Anna, kept the whole estate of Joseph Hays in her hands till she delivered these negroes to Susannah. The defendants insisted, that this delivery to Susannah was an assent of the executrix to the Inking of the bequest to the children of John Hays, &e.
    Smith, J., was of opinion the legacy vested in Anna a life estate which she might dispose of. That the instrument of writing, given by Anna, was only a surrender of her life estate, and could not prejudice the advantage of the other persons interested ; and that it did not preclude her co-executrix from claiming the negroes as assets after her death, as the remainder over did not pass.
    Verdict for the plaintiffs.
    The motion for a new trial was argued the last of April, 1810, by Starke, for the defendant, and Goodwin, contra.
    
    Starke cited Toller’s Law of Ex’ors, 359, 344, 306.
    Mrs. Anna Hays qualified as Ex’x, April 13th, 1800. The other Ex’x, Nancy, qualified 28th May, 1301, after the death of Anna.
   May 4th, 1810.

Bj?evard, J.,

delivered the opinion of the court. Stated the case concisely, as follows. Joseph Hays, having duly made his last will and testament, by which he appointed his wife Anna, and his daughter Nancy, his executrixes, died, leaving a son named John, and his said executrixes. Anna, and Nancy. By his will, he left the negroes in question to his wife for life, remainder over to his son John for life, and the ultimate remainder over to the children of John, to be equally divided. John died before his mother Anna, who qualified and acted as executrix under the will. As executrix, she sold and assigned over to Susannah, John’s widow, her own life estate in the negroes in question, in consideration of $20, to be paid to her annually, during her life. The same negroes are now claimed by the other executrix, Nancy, as personal assets administer!d of the estate of Joseph Hays. The defendants claim the same negroes as a legacy which has passed out of the hands of the executrix, Anna, duly qualified tb dispose thereof, and which cannot be reclaimed as assets.

It has not been contended, that the ulterior remainder to the children of John Hays is to be considered void, as too remota ; nor has it been objected that the death of John, in the lifetime of Anna, will deprive the children of John of the benefit intended them by the will. But the question which has been raised is, whether the legacy' intended for John’s children has passed to them from the executrix by a legal disposal, by the delivery of the negroes to Su-sannah, accompanied with the instrument above set forth; or whether, after Anna’s death, the same negroes may not legally be reclaimed as assets unadministered of the testator’s estate 1

Executors are considered as trustees, in so far as concerns the estate of their testator, and the act of any one ex.ecutor is regarded as the act of all the executors, unless otherwise directed and restricted by the will. The legacy in question was a specific legacy ; and it was the duly of the executors to deliver it over to the legatee, who was first entitled to take it, within a reasonable time alter tiie testator’s death. If there was no deficiency of assels, the executor would have no excuse for withholding the legacy until an arrangement could be made for paying debts, and discharging lega-cíes, according to the rules of law ; which might be very necessary where there is a defect of assets. But in this case, it appears there was no want of assets, without having recourse to the specific legacies. This seems clear, from the conduct of the executor, Anna, who, it is presumed, would not have disposed of her legacy if the estate was not sufficient to dlscharge-both debts and legacies. The legacy being to herself, could make no difference. Her disposing of it, is a clear proof that she accepted of it. She had an election, either to keep the negroes as assets, until compelled to deliver them over, or to take them as a legacy under the will. She determined her election by disposing of them as a legacy. There can be no good legal distinction between the bequest to her during life, and the bequest of the remainder over to the children of her son John. The one is as much a legacy as the other. These legacies are joined together, and may be said to be insepara, ble ; so far inseparable, that if they passed out of the hands of the executrix, as a legacy to the first taker, it passed to all tile intents and purposes expressed, and intended by the bequest, and can never afterwards be reclaimed as assets. The assent of the executrix could not be recalled, and her assent bound her co.executrix. The property, on delivery to Susannah, vested the life estate of Anna in her, in possession ; and at the same time the remainder over, after Anna’s death, vested in interest in the children of John ; and Anna’s possession, in contemplation of law, was their possession, so as to entitle them, on the event of Anna’s death, to claim the same as property in possession. The possession, and right of possession, of the executrix, was totally divested, as executrix. If there existed any necessity for resorting to these negroes, as a fund for the payment of the testator’s debts, or for a satisfaction of other legacies, it must he presumed that the same-necessity existed when the executrix, Anna, disposed of her legacy. It would be extremely mischievous to allow executors to cut up, modify, and dispose of .legacies, according to their own fancy; to pay part, and withhold part, according to their pleasure, or caprice. Suppose the legatee life, had received his legacy from the executrix, and had lived fifty years afterwards, would it be reasonable, after his death, to take ihe remainder as assets, and not suffer it to pass to the remain, der-rnan I The duty of the executor is, to administer the estate, and discharge debts as speedily as possible, to prevent the acr.umu. lation of interest. He cannot make the remainder over, liable as assets, and deliver over the life estate as a legacy.

Note. See L Saund. 273, new ed. by Serjt. Williams, note 5. Consent of executor necessary. Co. Litt. 1II. Legatees have no property in legacies until assent, although they have an interest. Sty. 55, 65. Plowd. 520. 1 Str. 70. Toller’s Law of Ex. 241, 2, 1 Vern. 94. 2 Ventr. 358. . Bac. Abr. Toller, 244. If an executor once consent, he cannot retract.

Motion granted.  