said Sarah Nutt, and at her death to Elizabeth | marriage with, and survivorship of, his said Fauntleroy Nutt, the granddaughter of the tes-wife and infant daughter, and only child, by tatrix. the said Elizabeth, his aforesaid wife, according to the form and effect of the statute in such case made and provided, entitled "An Act to reduce into one the several acts directing the course of descents," passed the 8th of December, 1792. The said life estate having ceased and determined, as your orator avers, on the day of 1840, by the death of the said Sarah Nutt, and that your orator, as the administrator of the said William J. MeClanahan, deceased, now has good right and title to sue for the recovery and possession of the said Lavinia, and her children and grandchildren, no right of action having accrued until after the death of the said Sarah Nutt. In the same year, viz., 1797, the testatrix died, and in June, 1797, the will was duly proved at the court of monthly session, and letters testamentary granted to Griffin Edwards, one of the executors named in the will. 171*] At some period of time after the death of the testatrix, the record did not show when, Sarah Nutt, the daughter, removed the girl Lavinia from the County of Northumberland to Alexandria, in the District of Columbia, and there sold her to one Nicholas F. Blacklock. After such sale, Lavinia had a numerous family of children and grandchildren. Elizabeth Fauntleroy Nutt, the granddaughter of the testatrix, intermarried with William J. McClanahan, and died, leaving one child, an infant, who survived its mother but a short time. William J. McClanahan also died after his wife and child, but before Sarah Nutt, without having reduced any of the said slaves into his possession. After his death, the complainant administered upon his estate. The order in which the parties died was according to the following numbers: Wm. J. McClanahan (4) = Elizabeth Faunt [Nutt (2) Daughter (3) Sarah Nutt, the last survivor of the five, died in 1840, and after her death Thomas H. McClanahan took out letters of administration upon the personal estate of William J. McClanahan, and also upon the personal estate of Eliza beth F. McClanahan, his wife; both letters being taken out from Northumberland County Court in the State of Virginia. In April, 1845, the administrator filed his bill against all the representatives of Nicholas F. Blacklock, who was dead; and also against all those persons who were alleged to have purchased any of the slaves. The bill recited the above facts and averred, that, after the decease of the tenant for life, the rightful ownership of the slaves passed to William J. McClanahan, notwithstanding he never had the slaves aforesaid in his possession, by virtue of his inter bunal to enforce legacy before assent-after assent, action at law maintainable-right of legatee before assent-action to compel legatee to refund, for payment of debts. Goods, chattels, and sums of money, to legatees, all pass to the executor, and he has them in nature of a trustee; and he alone has title in law to them, and nothing passes to the legatee, nor can any legatee take anything bequeathed to him, without the executor's assent. 6 Bac. Abr. tit. Legacies (L.); Godolph. Orph. Leg. 148; Off. Ex. 27: 2 Williams on Ex'rs, 1207, 1235, 1237, 1239, 1748; Dayton's Surrogate, 2d ed. 236; Redfield's Law of Surrogates, 318; 2 Perry on Trusts, sec. 809; Willard, Eq. Jur. 498, 500, 501; 2 Madd. Ch. 1, 2, Co. Litt. 111; Moore v. Barry, 1 Bailey, 504; Wilson v. Bird, 1 Harr. & J. 140; 3 Call, 220. It is the executor's duty to apply the whole perBonal estate, in the first place. to the payment of the debts of the deceased, without regard to the testator's having, by his will, directed that a portion of it shall be applied to other purposes. He, necessarily therefore, must have title to the whole, and may dispose of it; and the portion of it bestowed as legacies cannot be followed by a legatee, The bill then prayed for a discovery [*172 of the number of slaves, in whose possession they were, and for an account of the value of their services, etc., etc. In October, 1845, the defendants filed the following demurrer to the bill: "These defendants, respectfully, by protestation, not confessing or acknowledging all or any of the matters and things in the said complainant's bill to be true, in such manner as the same are therein set forth and alleged, do demur thereto, and for cause of demurrer show "1st. That the said complainant hath not, in and by said bill, made or stated such a case as doth or ought to entitle him to any such discovery or relief as is sought and prayed for, from and against these defendants. "2d. That the said complainant hath not, as appears by his said bill, made out any title to the relief thereby prayed. "3d. That the said complainant, by his own showing in said bill, is not entitled to the discovery and relief therein prayed, but is barred therefrom by lapse of time, and the statute of limitation in such cases made and provided. Wherefore, and for divers other errors and imperfections, these defendants humbly demand the judgment of this honorable court whether they shall be compelled to make any further or other answer to the said bill, or any of the matters and things therein contained, and pray hence to be dismissed with their reasonable costs in this behalf expended. "Francis L. Smith," "Solicitor for Defendants." either general or specific, into the hands of the alienee. Wms. on Ex'rs, 796, and cases cited: Knight v. Yarborough, 4 Rand. 566; McAllister Y. Montgomery, 3 Hayw. 94; Dayt. Surr. 2d ed. 280; Tole v. Hardy, 6 Cow. 339; Wilson v. Rine, 1 Harr. & J. 138. And therefore if the legatee take possession of the thing devised, without the assent of the exec utor, he may have an action of trespass against him. Dyer, 254; Keilw. 128; Dayt. Surr. 2d ed. 412. The legatee cannot take the legacy without the assent of the executor. But as the executor only takes the title as trustee, and as it is the will of the testator which gives the interest to the legatee, the law does not require any exact form in which such assent must be given. Hence any expression or act done by the executor which shows his concurrence or agreement to the thing devised, will amount to an assent. Off. Ex. 29, 322; Godolph 148; Plow. 53, 525; March. 136, 137, 138: 6 Bac. Abr. 331, tit. Legacies (L.); 1 Vern. 90, 94, 460; 2 Vent. 358; 5 Co. 29; 4 Co. 18; 8 Co. 96; Tonchst. 455, 456; Cowp. 293; Lampet's case, 10 Rep. 47 a, 52 b; 1 Leon. 216, 129; Cro. Eliz. 602; Paramour v. Yardley, Plowd. 539; Younge v. Holmes, In May, 1846, the cause came up for argument, when the court sustained the demurrer and dismissed the bill. The complainant appealed to this court. The cause was argued by Mr. Neale for the appellant, and Mr. Francis L. Smith for the appellees. did not aver the assent of the executor of Elizabeth Edwards, who died in the year 1797, and that, without such assent being averred, an action of detinue could not be sustained, he contended, that the possession of the slave Lavinia, from the time of the death of the testatrix in the year 1797, by the life tenant, until Mr. Neale, for the appellant, in reply to the her death in 1840, was sufficient presumptive first cause assigned for demurrer in the appel- evidence at least of such assent, but at the same lees' printed brief, argued, that notice could time he argued that no such averment was not have been given the purchasers of the slave necessary in a chancery suit, but admitted that Lavinia and her offspring, because those in re- such assent was necessary, and should be mainder were kept in profound ignorance of averred, in a court of law. He also contended, the sale by the life tenant, until after her death, that the title to the slaves in remainder vested which happened in the year 1840; and as to its in Elizabeth F. Nutt at the death of Elizabeth operating a fraud on the purchasers, he was at Edwards, and that it also vested in the appela loss to imagine how a charge so foul could be lant's intestate, upon his intermarriage with the imputed to the appellant, or those whose inter- said Elizabeth F. Nutt; that the possession of ests he represented. He thought that the late the life tenant was the possession of those in reSarah Nutt, the life tenant, was alone properly mainder; that the same remark applies with obnoxious to the imputation of fraud, for that equal propriety to the purchasers, who by the 173*] she, and she only, *was concerned in purchase acquired no greater title than Sarah the transaction. That she was entirely regard- Nutt took under the will of her mother, less of her mother's last solemn bequest, and Elizabeth Edwards; that it was, in technical equally reckless of her own child's legitimate language, a possessio fratris; that William J. rights; and he asked, was this a "mother's McClanahan took by operation of law-had a love," which, in the beautiful language of constructive possession-and that no adminispoetry, is said to be a "living fountain of un-tration was necessary on the personal estate of dying waters." So far from it, he contended, Elizabeth F. McClanahan either by [*174 that the mean and detestable passion of avarice, her late husband when living, or by the appelwhich converted all the noble and generous lant, who is his administrator. But even asfeelings of our nature into the meaner passions suming, arguendo, that such administration was of the soul, at once, in this case, quenched and necessary, and under it a recovery of the slaves dried up forever the holy fountain, which had been effected, in that event her adminisotherwise would have been, as it should be, a trator would have recovered and held the slaves, perennial stream. as trustee, for the administrator of William And in regard "to the general policy of the J. McClanahan or his next of kin, which might laws of Virginia, in protecting bona fide pur- have caused circuity of suits, or actions, to prechasers of personal property without notice"-vent which is one of the heads of equity jurisas reported in 5 Leigh, 520-he denies that it applied to the case then under consideration, reminded the opposite counsel of the maxim, Caveat emptor, and argued, that, while the law had been fully complied with as regarded the will of Elizabeth Edwards, not so as regarded the mortgage mentioned and reported in 5 Leigh, and that the two cases were entirely dissimilar, and then proceeded to show it by comparing them. To the second cause of demurrer he insisted, that "every preliminary act necessary to make the plaintiff's title complete" was to be found in the bill. And to the objection that the bill 1 Strange, 70; Dayt. Surr. 2d ed. 412; Bank of England v. Lunn, 15 Ves. 569; 2 P. Wms. 582; Lev. 25; Hayes v. Sturgis, 7 Taunt. 217, and cases cited; Cooks v. Bellamy, Sid. 188; Eastwood v. Warry, Comb. 437, 438; Duppa v. Mayo, 1 Saund. 279, note 5; 1 Roll. Abr. 618 (A), pl. 1, 2; Sty. 55, 65; Wms. Ex'rs, 1178-1179 and cases cited, 480, 481; Johns v. Johns, 1 McCord, 136; Green v. Croft, 2 H. Black. 30; Alston v. Mumford, 1 Brock. 211. When assent has been followed by payment or delivery, it cannot be retracted. March. 136, Cro. Jac. 614, 615; 2 Vent. 360; Leon. 130, 131; 1 Roper on Legacies, 743. Nor in such cases can it be sold on execution against the goods of the testator in his hands. Alston v. Foster, 1 Dev. Eq. 337; Baker v. Hall, 12 Ves. 497; Isenhart v. Brown, 2 Edw. 341. The executor's assent to the first taker is an assent to all subsequent takers of a legacy, limited over by way of remainder or executory devise. Dunwoodle v. Currington, 2 Car. L. R. 469: Alston V. Foster, 1 Dev. Eq. 337; Saunden v. Gatlin, 1 Dev. & Bat. Eq. 86; Ingram v. Terry, 2 Hawks, 122; Adle v. Comwell, 3 Mon. 282; Ingram . diction. O. R. Code, p. 168, sec. 3; Ibid. p. 164, sec. 27; 1 Tucker's Com. book 2, p. 318; 1 Munf. 98. He also submitted, that, if the infant child, under the statute of distribution, succeeded to the property of the mother, if the father, under the third section of the statute of descents, was not the heir of his infant child. To the plea of the statute of limitations, he relied on the savings of non-residence in said statute as conclusive in favor of the appellant. O. R. Code, p. 107, sec. 4; Ibid. p. 109, sec. 12; Laws of United States, old edition, p. 268, sec. 1. Terry, 2 Hawks, 122. But this rule does not prevail when, after the death of the first taker, the executor has a trust to perform arising out of the property. Allen's Ex'rs v. Watson, 1 Murph. 189; James v. Masters, 3 Murph. 110; Anon. 2 Hayw. 161; Black v. Ray, 1 Dev. & Bat. 834, see 1 Dev. & Bat. Eq. 94. A court of equity can enforce payment of a legacy after it became payable, if there be sufficient assets, whether the executor assented or not. This is merely compelling the executor, who in respect to the legatees is a trustee, to execute his trust, which is the appropriate province of a court of equity. Equity, where there is no assent, is the proper tribunal. Willard Eq. Jur. 500; Day v. Trig, 1 P. Wms. 287; 7 Barn. & C. 544; 2 Saund. 137 b. note; Pelletrean v. Rathbone, 18 Johns. 426; Livingston v. Livingston, 3 Johns. 189; Deeks v. Strutt, 5 D. & E. 687-690; Brown v. Elton, 3 P. Wms. 202; Howard v. Moffat, 2 Johns. Ch. 206; 1 Atk. 491, 516; Reynish v. Martin, 3 Atk. 833; 1 P. Wms. 575, 644. Where the executor has specially promised to pay the legacy, or assented to it, an action at law may be sustained for it. Childs v. Monins. 2 Brod. And in reply to the forfeiture, for the removal out of the State of the slaves in question, he contended that it applied only to dower slaves, and not to legacies. O. R. Code, p. 191, sec. 44. Mr. Francis L. Smith, for the defendants, contended, under the first ground of demurrer, that the plaintiff had not showed himself to be entitled to any relief. The allegations of the bill are vague and indefinite throughout. There is no distinct and express averment that the defendants, or either of them, claim or are possessed of the negro woman Lavinia, or her offspring. The nearest approach to an express charge is in reference to Betsey, but the bill does not expressly aver that she is either claimed or possessed by Davis or Nutt; it is said that she and the children whom she is said to have had, since her sale to Coleman, are in possession of either the one or the other. There is still more uncertainty as to the other slaves; even Lavinia is not averred to be claimed by either of the defendants, or to be in their possession. But she and her daughter Maria are charged as hiring themselves about the town of Alexandria, and as accounting for their hires with the family of Nicholas F. Blacklock, deceased. The bill is too loose and uncertain to require any specific answer. The allegations should have been direct and positive, both as to facts and parties. Story's Eq. Pleading, ed. 1840, secs. 244 to 251, inclusive; also sec. 510. 175] The case made by the bill should have traced the plaintiff's title, and shown his right to recover, with as much certainty as to the substantial facts, as pleadings at law. East India Co. v. Henchman, 1 Ves. Jun. 287; Mitf. Pl. 150; Ryves v. Ryves, 3 Ves. 343; McGregor v. East India Co. 2 Simons, 432; Hardman v. Elames, 5 Ib. 640; S. C. 2 M. & K. 732; Walburn v. Ingsby, 1 M. & K. 177; Jerrard v. Saunders, 2 Ves. Jun. 186; Mechanics' Bank v. Levy, 3 Paige, 606. There must be an actual, not a pretended, necessity for a discovery, presented by a full statement of the case, and not by general averments. Meze v. Mayse, 6 Rand. 660; Webster v. Couch, 6 Rand. 524; Russell v. Clarke's Executor, 7 Cranch, 69, 89. A defect in the charging part of a bill cannot be supplied by a subsequent interrogatory. Parker v. Carter, 4 Munf. 273. Whilst it is admitted, on behalf of the defendants, that there may be cases in which a court of equity & Bing. 460; De Witt v. Schoonmaker, 2 J. R. 243; Beecker v. Beecker, 7 Johns. 99; Willard Eq. Jur. 500, 501; Atkins v. Hill, Cowp. 284; Hawkes v. Saunders, Cowp. 289; 2 Lev. 3; Vent. 120; Davie and Reyner, Sel. Cas. Ev. 59; 11 Mod. 91, pl. 15; M'Nell v. Quince, 2 Hayw. 153; Goodwin v. Chaffee, 4 Conn. 163; Doe v. Guy, 4 Esp. 154; 3 East, 120, and cases cited; Williams v. Lee, 3 Atk. 223; 6 Bac. Abr. 335. An executor who had paid specific legatees, discovering a deficiency of assets to pay creditors, and a consequent overpayment to legatees cannot maintain an action at law to recover back such overpayment from a particular_legatee; a court of equity is the proper tribunal. Somerville v. Somerville, 8 Gill (Md.) 276; Johnson v. Johnson, 3 Bos. & Pull. 179; Sele v. Cuy, 3 East, 123; Story Eq. sec. 534. Before the assent of the executor the legatee has an inchoate right to the legacy, which is transmissible to his personal representatives on his can properly entertain jurisdiction for the recovery of slaves, yet they insist that this case does not fall within the rule. The plaintiff's remedy was in a court of common law. Armstrong v. Huntons, 1 Rob. Va. 323; Wright v. Wright, 2 Litt. Ky. 8; Bass v. Bass, 4 Hen. & Mun. 478; Joyce v. Grinnals, 2 Richardson's Eq. 259; Parks v. Rucker, 6 Leigh, 149. This is an effort to recover the slave Lavinia and her increase from bona fide purchasers, holding under Blacklock; the parties in remainder, having failed to give notice of their claim to the slave Lavinia or her increase, which would operate a fraud on such purchasers. As to the general policy of the laws of Virginia, in protecting bona fide purchasers of personal property, without notice, see Lane 7. Mason, 5 Leigh, 520. The second cause of demurrer is, that the plaintiff has not made out any title in himself to the discovery and relief prayed. Every preliminary act necessary to make the plaintiff's title complete should be averred in the bill, and the mere allegation that his title is complete is not sufficient. 1 Daniell's Ch. Prac. mar. page 422, and cases there cited. Before the title to the slave Lavinia could, under the will of Elizabeth Edwards, be complete in Sarah Nutt or Elizabeth Fauntleroy Nutt, it is indispensable that the assent of the executors to the legacy should have been obtained, and so alleged in the bill. There is no such averment. See 2 Lomax on Executors and Administrators, sec. 3, pp. 128 and 129, and cases there referred to, declaring that a legatee of a slave cannot, if the assent of the executor has not been obtained to the legacy, maintain [*176 an action of detinue against one who unlawfully holds possession of the slave; nor will the assent in such case be dispensed with, though no one has taken out probate or letters of administration. Sutton v. Crain, 10 Gill & Johns. 458; Woodyard v. Threlkeld, 1 Marsh Ky. 10, 11; Hasirton v. Hall, 3 Call, top page 188; side page 219. But is the title to the slaves in the plaintiff! He must recover, if at all, either because William J. McClanahan, by virtue of his marital rights, during the coverture reduced the slaves into possession, or from his having obtained letters of administration on his wife's estate, not being compelled to make distribution. The bill expressly negatives the first, and is silent as to the second ground. There being no averdeath taking place before it is paid or delivered. Dayton's Sur. 2d ed. 412; Wms. Ex'rs, 1176. A legatee has no authority to take possession of his legacy without the executor's assent, although the testator, by his will, expressly direct that he shall do so; for if this were permitted, a testator might appoint all his effects to be thus taken, in fraud of his creditors. Dayton's Sur. 2d ed. 411, 412; Wms. Ex'rs. 1176. Even where the testator by his will discharges a debt, it is not discharged without executor's assent, for same reason. Idem. Where executor voluntarily discharges a legacy, he cannot afterwards maintain a bill to compel the legatee to refund, unless it becomes necessary for the discharge of debts. Davis v. Newman, 2 Roh. (Va.) 664; 1 Eq. Cas. Abr. 239; Noel v. Robinson, 1 Vern. 94; Newman v. Barton, 2 Vern. 205; Coppin v. Coppin, 2 P. Wms. 292; Orr v. Kaines, 2 Ves. Sen. 194; Brisbane v. Darces, 5 Taunt. 144; Skyring v. Greenwood, 4 Barn. & C. 281. ment that he so administered, we have a right to assume in this argument that he did not. How else, then, can the plaintiff claim title to the slaves, in his character as administrator of William J. McClanahan? In all cases of concurrent jurisdiction at law and in equity, the statute of limitations is equally obligatory in each court. 2 Story's Eq. Jur. secs. 1520 and 1520 a; 6 Bac. Abr. 385. If there be any outstanding valid title, legal This is nothing more than an action of detior equitable, as against the defendants, it must nue in the form of a suit in equity. be in the personal representative, or next of The lapse of time, and gross laches of the kin, of the deceased wife, Elizabeth Fauntle-parties claiming in remainder, should of itself roy McClanahan, and if so, the plaintiff cannot maintain this suit. 2 Bl. Com. ed. 1847, p. 433; Wallace v. Taliaferro, 2 Call, 447; Upshaw v. Upshaw, 2 Hen. & Mun. 381. Third, the discovery and relief prayed for are barred by lapse of time and the statute of limitations. Both of these grounds of defense may be taken advantage of by demurrer. Wisner v. Barnet et al. 4 Walsh. C. C. 638, 639, and cases there cited; Humbert v. The Rector of Trinity Church, 7 Paige, 195; Dunlap v. Gibbs, 4 Yerg. 94. The limitation to an action of detinue in Alexandria is five years. See Old Revised Code, ed. 1803, p. 107. And it is the settled doctrine in Virginia, that the adverse possession of a slave for that period, acquired with out force or fraud, confers absolute title. Newby's Adm'rs v. Blakey, 3 Hen. & Mun. 57; Taylor v. Beal, 4 Grattan, 93; Ellmore v. Mills, 1 Hayw. 412; Halsey's Adm'r v. Buckley, 2 Hayw. 234; Orr et al. v. Pickett et al. 3 J. J. Marsh. 268; Kegler v. Miles, Martin & Yerg. 426; Shelby v. Guy, 11 Wheat. 361; Brent v. Chapman, 5 Cranch, 358. The statute of Virginia, 1 Revised Code (ed. 1819), p. 431, sec. 48, declares the estate of the life tenant forfeited by a removal of slaves out of the State. Assuming the removal to have occurred as stated in the bill, then the title to Lavinia was, by the forfeiture, immediately devested out of Sarah Nutt; and the party in remainder might forthwith have maintained detinue for the 177*] slave. Wilkins v. Despard, 5 Term R. 112; Roberts v. Withered, 5 Mod. 193; S. C. 12 Mod. 92; and cases there cited. Also reported in 1 Salk. 225, by the name of Roberts v. Wetherall. The statute of limitation, in case of a contingency, runs from the time the contingency happens. Fenton v. Emblers, 1 W. Bl. 354. So of usury, it begins to run the instant the money is paid. 8 Bac. Abr. Gwillim's ed. 1844, 372. And in actions for taking insufficient bail, from the return of non est inventus on the execution against the principle. Ibid. p. 373. As soon as a trust ceases, action accrues, and the statute begins to run. Green v. Johnson, 3 Gill & Johns. 389. Trover is barred after six years, though the plaintiff was ignorant of the conversion, the defendant not having committed any fraud to prevent the plaintiff's ear lier knowledge. Granger v. George, 7 Dowl. & Ryl. 729. If an executor in trust for another neglects to bring his action within the time prescribed by the statute, the cestui que trust or residuary legatee will be barred. Wych v. East India Co. 3 P. Wms. 309. The statute runs in favor of disseizors and tortfeasors. Harrison v. Harrison et al. 1 Call, top page 372, side page 428. be a complete defense to the claim. The bill is multifarious. On this point it is only necessary to cite 1 Daniell's Chan. Prac. pp. 438 to 451 inclusive, and the cases there cited. Note.-Extract from 1 Revised Code of Virginia (ed. 1819), p. 431, sec. 48: "If any person or persons possessed of a life estate in any slave or slaves shall remove, or voluntarily permit to be removed, out of this Commonwealth such slave or slaves, or any of their increase, without the consent of him or her in reversion or remainder, such person or persons shall forfeit every such slave or slaves so removed, and the full value thereof, unto the person or persons that shall have the reversion or remainder thereof, any law, custom, or usage to the contrary notwithstanding. Mr. Justice Nelson delivered the opinion of the court: This is an appeal from the Circuit Court of the District of Columbia, and County of Alexandria. *The bill was filed by the administra- [*178 tor of Thomas H. McClanahan against the defendants, to obtain possession of Lavinia, a slave, together with three children, Betsey, Polly, and Maria, and several grandchildren, which had been bequeathed by Elizabeth Edwards to Sarah Nutt, her daughter, for life, and after her decease to Elizabeth F. Nutt, a granddaughter, the wife of the complainant's intestate. Elizabeth, the granddaughter, died, leaving the intestate, her husband, surviving, who died also, leaving Sarah, the life tenant, surviving. The latter died in 1840. The complainant took out letters of administration on the estate of the husband, September 9, 1839, and afterward upon the estate of Elizabeth, the wife, on the 9th of November, 1840, and filed this bill in April, 1845, claiming that the property and right to the possession of the slaves bequeathed to the wife in remainder became complete in him, as the representative of the estate of the husband, on the death of the life tenant. The defendants demurred to the bill, and several grounds of objection have been taker under the demurrer. 1. That there is no averment that the executors of Mrs. Edwards assented to the legacy to the granddaughter, so as to vest the property in the legatee, and enable the personal representative to bring the suit. Ilairston v. Hall, 1 Call, 188; Smith and Wife v. Towne's Adm'r, 4 Mun. 191. The whole of the personal estate of the testator devolves upon the executor; and it is his duty to apply it, in the first place, to the payment of the debts of the deceased; and he is responsible to the creditors for the satisfaction of their demands to the extent of the whole estate, without regard to the testator's having, by the will, directed that a portion of it shall remainder or reversion, and afterwards marry. be applied to other purposes. Hence the neces-ing, and dying before the determination of the sity that the legatee, whether general or speci- particular estate, the right vests in the husband. fic, and whether of chattels real or personal, The President (Pendleton) stated, that this was must first obtain the executor's assent to the the constant decision of the old General Court legacy before his title can become perfect. He from the year 1653 to the Revolution, and has has no authority to take possession of the leg-since been confirmed in this court, in the cases acy without such assent, although the testator by the will expressly direct that he shall do so; for, if this were permitted, a testator might appoint all his effects to be thus taken, in fraud of his creditors. 2 Williams on Exec-principle. There the question was between utors, p. 843, ch. 4, sec. 3, and cases there cited. But the law has prescribed no particular form by which the assent of the executor shall be given, and it may be, therefore, either express or implied. It may be inferred from in'irect expressions or particular acts; and such constructive permission shall be equally available. An assent to the interest of the tenant for life in a chattel will inure to vest the inter179] est of the remainder, and eo converso, as both constitute but one estate. So an assent to a bequest of a lease for years carries with it an assent to a condition or contingency annexed to it; and it may be implied from the possession of the subject bequeathed by the legatee for any considerable length of time. Ibid. p. 847, and cases. of Sneed v. Drummond, and Hord v. [*180 That the husband, and, in case of his death, his personal representative, are entitled to administration in preference to the next of kin to the wife, was expressly decided in the case of Hendren v. Colgin, already referred to. The bill, in this case, contains an averment of the possession of the subject of the legacy by the life tenant, in pursuance of the bequest in the will, and which is admitted by the demurer; and, upon the principles above stated, lays a sufficient foundation for the presump- In the case of Chichester's Ex'r v. Vass's tion, that the possession was taken with the Adm'r, 1 Munf. 98, Judge Tucker expressed assent of the executors-a presumption of law the opinion, that, in equity, letters of adminfrom the facts admitted, and which assent in-istration upon the estate of the wife were un ured to the benefit of the remainderman. This necessary; and he referred to several authori ground of objection is not, therefore, well taken. 2. The next objection is, that the complainant has shown no title to the slaves in question, upon the face of the bill. Because the interest in the remainder did not vest in the intestate, the husband, before his death, so as to make the property a part of the assets of his estate, to be administered upon by his personal representative. He survived Elizabeth, his wife, the legatee in remainder, but died before the life tenant, and therefore had not, and could not have, reduced the subject of the legacy into possession in his lifetime. This question is to be determined upon the laws of the State of Virginia; and, on looking into the course of the decisions of the courts in that State, it will be found that the interest of the husband in the wife's remainder of this species of property is placed upon the footing of an interest in a chose in action of the wife, which vests in the husband, if he survives, subject to be reduced to possession by him, if living at the termination of the life estate, and if not, by his legal representative, as a part of his personal estate. Dade v. Alexander, 1 Wash. 30; Wallace et ux. v. Taliaferro et ux. 2 Call. 447, 470, 471, 490; Upshaw v. Upshaw et al. 2 Hen. & Mun. 381, 389; Hendren v. Colgin, 4 Munf. 231, 234, 235; Wade v. Boxley, etc., 5 Leigh, 442. ties in England, in support of the position, and especially the case of Elliot v. Collier, 3 Atk. 528; S. C. 1 Wils. 168; S. C. 1 Vern. 15. See, also, Squib v. Wyn, 1 P. Wms. 378, 380, 381; Harg. note to Co. Lit. 351; Whitaker v. Whitaker, 6 Johns. 112, 117, 118. The cases of Dade v. Alexander, Robinson v. Brock, Drummond v. Sneed, and Wade v. Boxley, etc., already referred to, are cases in which the administration of the wife's estate seems to have been dispensed with. The usual course, however, is to take out letters; though it is difficult to assign a reason for the requirement; except, perhaps, to give the creditors of the wife a remedy, as the surviv ing husband is liable for her debts in this representative character to the extent of her aðsets. Heard v. Stamford, Cases Temp. Talb. 173; 3 P. Wms. 409; 2 Williams on Execu tors, 1083, 1084; Gregory v. Lockyer, 6 Madd. 90. These are limited to her personal estate, which continued in action, and unrecovered at her death. Beyond this he is not responsible, after her decease, no matter what may have been the estate received by her. 2 Williams on Executors, 1084; Went. Off. Executors, 369; and cases before cited. In this case the complainant took out letters of administration upon the estate of [*181 Elizabeth, the wife, which are referred to in the bill, as well as the letters upon the estate In a very early case in the Court of Appeals, of the husband; but there is no averment of a Dade v. Alexander, decided in 1791, it was re-claim to the possession of the slaves in that Boved, a feme sole being entitled to slaves in right, the claim being placed exclusively upon |