The will of William Andrews was admitted to probate in 1828, and the executors having renounced, John Dunn was appointed administrator with the will annexed. Among others, there is this clause: "Fourth. I lend to my son William Andrews one-half of my Ruffin tract of land, also one-fourth of my other property; and at his death, I lend the same to his lawful heirs. I leave the same in the hands of my executors for the support of my said son William."
In 1833 a bill was filed by one of the legatees against Dunn and the other legatees for a settlement and division of the estate. Such proceedings were had therein that in 1835, all the debts having been paid, a settlement was made and the property was divided into four parts, of which three parts were delivered to the three legatees entitled thereto and the remaining fourth part, which included the mother of the slave sued for, continued in possession of the administrator under this clause in the decree: "The other share of said slaves shall be allotted to John Dunn, administrator, and so on, for the use of the defendant William *Page 143 Andrews upon the trust declared in the will of William Andrews, deceased."
William Andrews, Jr., had left the State before the bill was filed and gone to parts unknown. John Dunn hired out the slaves from year to year and deposited the notes taken for the hire in court.
Dunn died in 1839. The plaintiff was appointed administrator de bonisnon, with the will annexed, of William Andrews, Jr., and soon thereafter commenced this suit.
The only question intended to be presented to this Court is (205) whether the part bequeathed to William Andrews was unadministered at the death of the death of the first administrator, so as still to be a part of the estate of the testator, and, as such, vest in the plaintiff as administrator de bonis non, or whether the facts above stated show an assent by the first administrator to this legacy, the legal effect of which was to vest title in him as trustee for William Andrews, Jr.
The assent of an executor to his own legacy, as well as his assent to the legacy of another, may be expressed or implied. Hearne v. Kevan,37 N.C. 34, where this doctrine is fully discussed.
Dunn expressly assented to the legacies of the persons entitled to the other three shares by an actual delivery to them, and it is entirely clear that as to the remaining fourth share there was an assent, expressed or implied.
Our opinion is that there was nothing unadministered, and the plaintiff, as administrator de bonis non, consequently has no title in the slave sued for.
His Honor was of opinion that there was no evidence of an assent by the first administrator. In this there is
PER CURIAM. Error.