| N.C. | Dec 5, 1832
His Honor instructed the jury that the legal title to a chattel bequeathed was in the executor; that an assent to the legacy was the transfer of that legal title to the legatee; that to constitute such assent, the executor must manifest an intent to part with his title in favor of the legatee; that this intent might be manifested by words or acts; that slight circumstances were, in some cases, sufficient for that purpose; that the executor saying that the slave belonged to the legatee, and that he had written to him to that effect, would in law be an assent, unless at the time of making those declarations the slave had been sold to the defendant, who was then holding him adversely; that if the executor had sold the slave, no assent which he could give would vest the title in the legatee; and as to the declarations of the executor, when about to convey the property as above stated, the judge stated it in the form of an interrogatory, and asked the jury whether that declaration manifested an intent to part with, or that he had parted with, the legal title.
In submission to this opinion, the plaintiff suffered a nonsuit, and appealed. after stating the principal facts as above set forth, proceeded as follows: Whether the executor had assented to the legacy, so as to enable the plaintiffs to maintain their action, was a question submitted to the jury. The judge correctly stated in his charge that "the executor must manifest an intent to part with the legal title in favor of the legatee; this intent might be manifested either by words or acts; that slight circumstances were in some cases sufficient for that purpose." But in commenting on the declarations of the executor, proved to have been just before he executed the deed for the benefit of his creditors, the judge stated it to the jury in the form of a question, "Did such a declaration manifest an intent to part with, or that he had parted with, the legal title?" Instead of charging in that manner, we think he should have told the jury that the length of time which had elapsed from the probate of the will to the period when the executor stated that he held the slaves as next of kin to the legatees, taken in connection with the fact of his selling them, claiming to be the owner, was sufficient evidence, if they believed it, to authorize them to find that an assent had been given by the executor. *327
There is another point apparent in the case which renders it improper to send the case back for a new trial, as the plaintiffs clearly have no right to recover in a court of law, if all the points made in it were determined in their favor. Dorcas Chapman had, by the settlement, only an equitable interest in the slave. The power only enabled her, "by writing in the nature of a will, or other writing duly attested," to make an appointee to take that equitable interest which she herself had by virtue of the settlement. The legal estate remained in the trustee until the sale made by him to the defendant. Whether the plaintiffs can recover the slave in a court of equity is not for us now to determine. (402)
Although the testatrix appointed an executor, and he had the will admitted to probate in the county court, which by law he ought to have done, yet that did not displace the legal title in the slave and place it in the executor. The legal title remained in the trustee, and as the testatrix had only the equitable estate, she, by her will, could not invest her executor with any other interest than she had herself. The assent of such an executor transfers no title. The circumstances of the testatrix making Worsley, who was the trustee in the settlement, also her executor, does not alter the case; he still held the slave as trustee, and as such, an assent would not pass him to the plaintiff; the law would not divest the trustee of the legal title, unless he had made an actual delivery, or had executed a bill of sale to the plaintiff, which was never done. A writing in the nature of a will by a feme covert, under a power, is not a proper will, for she cannot make a will by the rules of law, but in equity it is an appointment, and the appointee takes under the power, coupled with the writing. We think the plaintiffs in this case have no title at law, and therefore the judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Jones v. Strong,