This was an action of Trover, brought by the plaintiff as the administrator debonis non, with the will annexed of Jacob White, to recover of the defendant the value of several slaves. The defendant pleaded the general issue, and the statute of limitations.
The controversy was, whether the plaintiff’s testator ever had any title to the slaves which are sought to be recovered. Bagar the mother of tjhe slaves sued for, had belonged to Joshua White, the father of the plaintiff’s testator. In the year 1776, Joshua White signed and scaled a paper writing, in which he declared that no law moral or divine, had given him right or property in the person of any of his fellow creatures : — that he then had under his care a negro girl named Bagar, and that be released, (after the year, 1785, when she would be eighteen years of age,) ail claim or pretension of claim to the said girl; and to this he bound his heirs, executors and administrators. This declaration in writing, the jury have found, was never delivered as a deed, either to Ba-gar or any other person for her benefit; in law therefore, she still belonged to Joshua White. The only evidence of the manner in which the girl came into the possession of Jacob White, is his declaration made in a conversation with the girl, after the death of his father, when he told her he would no *258bail kept her in conformity with a promise made to bis father, until she was eighteen years old, and that siie should go to her protectors. Jacob White said, about a year before he died, that he did not own any slaves. Whilst the slave llagar was in the possession of Jacob, his father Joshua made his will, (but at what date the case does not state,) in which he appointed an executor. After the death of Joshua, his executor qualified. By one clause in the will, the testator gave to his son Jacob a tract of land and alt the property he had before possessed him witlu— Jacob White after making a will and appointing an executor, died in the year 1816. The executor of Jacob qualified and never claimed the slaves as belonging to the estate of his testator. The executor died in the year, 1821, and the plaintiff administered in the year 1831; demanded the slaves as part of the estate of Jacob, and on refusal by the defendant to deliver them, brought this action. The defendant insisted at the trial, that on these facts the plaintiff could not recover.
On the trial of the cause, (as I gather from the very imperfect statement sent up,) five distinct questions arose; first, was the paper delivered as a deed ? secondly, was llagar a part and parcel of the property, of which the testator had before possessed his son Jacob ? Thirdly, if she was, did the executor ever assent to the legacy ?— Fourthly, Was the act of limitations a bar to the plaintiff’s action ? Fifthly, could the plaintiff recover, after having declared as administrator and then stating in his declaration, that the conversion had taken place at a date subsequent to the death of the testator ? The court, after charging the jury that the plaintiff might recover upon his own possession although he had declared in his representative character, proceeded and said to the jury, “if they believed the plaintiff’s witnesses, his title was-made out, and that he had a right to recover, unless the defendant had shown a good defence.” If this be a correct statement, and I am bound so to consider it, the Judge erred in his charge. Whether Hogar under the ■ clause of Joshua White’s will, and if so, whether the executor had ever assented to that bequest so as to vest the *259legal title of Hagar in Jacob, were necessary enquiries before it could be determined that the plaintiff had made out his case, and matters on which the Judge alone could not pass. The correct charge, I think would have been, to have told the jury that the will of Joshua, by construction of law, passed to Jacob the beneficial interest in Hagar, if she had been put into his possession as property; but not, if She were placed under his protection as free ; and that the character of Jacob’s possession, was a point for them to determine — and further, that if Jacob kept the possession of Hagar for many years, claiming the property in her under this bequest, such a possession would well warrant the presumption of an assent by Josh-iia’s executor, but that if he did not hold Hagar as property, nor claim title to her under his lather’s will, there was no evidence on which to raise such a presumption. The Judge'did not leave it to the jury to infer, from the written declarations made by the testator, and to be gathered from the paper, although it might not operate as a deed, and from the conduct and declarations of his son as to the manner he held Hagar, whether she was “ parcel or not parcel” of all the property lie had before possessed his son with, and was intended to pass under the words mentioned in the aforesaid clause in the will. Neither did thé Judge leave it to the jury to say whether, from the evidence and circumstances of this case, the presumption of an assent to the legacy by the executor arising from lapse of time, was or was not rebutted. I feel myself bound then to declare, upon the case stated, that the judgment rendered must be reversed and a new trial granted.
ifalegatee takes possession of pro-under the -will & ny years; this is e™lenoe which presumption of ccutor.
Per Curiam — Judgment reversed.