HENDERSON COUNTY, NC - COURT - Sarah (Mills) Edney v. William Bryson, Aug 1855
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SARAH [Mills] EDNEY v. WILLIAM BRYSON, 
North Carolina State Supreme Court, August Term, 1855, 47 NC, page 365:

Regarding the estate of Sarah's deceased husband, Asa Edney.

An Executor may lawfully assent to a specific legacy before the debts of the
estate are paid.

The assent of an executor for a specific legacy may under circumstance, be
legitimately implied.

ACTION OF TROVER, for the conversion of a slave, tried before his honor, Judge
Sanders, at the Spring Term, 1855, of Henderson Superior Court.

The plaintiff claimed title to the slave in question, under the will of Asa
Edney, by which, it was given to plaintiff for life, and after her death, to
be sold by the executor, and the proceeds divided among his next of kin. The
testator died in the spring of 1842, and the will being caveated, was not
admitted to probate till the spring of 1844. Immediately after the death of
the testator, the plaintiff was in possession of the slave, claiming him under
the will, and exercising acts of ownership over him (sometimes hiring him out)
up to the levy in 1849, without any claim by the executor, to wit, for about
seven years.

The defendant claims under a sale, by virtue of a judgment and execution
against the executor for a debt of the testator. The execution was levied in
the fall of the year 1849, and the sale made shortly thereafter.

It was insisted on behalf of the defendant, that it was not competent for the
executor to assent to legacies before the debts were paid.

Again: that the executor had not assented to the legacy. And that, at any
rate, the plaintiff was only entitled to damages for the conversion of the
life estate.

The Court charged the jury that if the executor had assented to the bequest,
the title of the plaintiff was established, and she was entitled to recover,
notwithstanding the existence of unsatisfied debts at the time of the assent,
and he left it to the jury upon the evidence, whether there was such an
assent. That the measure of damages would be the value of the plaintiff's life
estate. Defendant excepted. Verdict for plaintiff and appeal.

Baxter, for plaintiff. N.W. Woodfin and Bynum, for defendant.

JUDGE BATTLE: An attentive examination aided by the argument of counsel, has
not enabled us to discover any error in the bill of executions, of which the
defendants have any just cause of complaint. An executor may, if he think
proper, assent to a specific legacy before he has paid the debts of the
testator, of which the case of Allston v. Foster may be cited as an instance.

There can be no doubt that the assent of an executor to a specific legacy "may
be legitimately implied, as well as expressly proved." And the facts proved in
this case were certainly proper to be left to the jury for that purpose.
Whether the testimony was fully sufficient to justify the verdict, we have no
right to inquire. If it were not, the Judge of the Court below, might have
granted a new trial: but that is a matter of discretion in him, with which we
cannot interfere.

Upon the question of damages, the charge of the Court seems to us to be
substantially the same as was prayed by the defendants, and of course they
cannot complain of it.

PER CURIAM. Judgment affirmed, in favor of Sarah Edney.