Blackford, J. —
This was an action of debt brought by James W. Crist, executor of George W. Crist, deceased, against Christian Crist.
The suit is founded on two sealed notes for the payment of money, executed in December, 1839, by the defendant, and payable to the testator.
There are two special pleas, to which replications were filed. The replications were demurred to generally, and judgment was rendered for the plaintiff.
It is not deemed necessary to set out the’ pleadings at length. Taking the allegations in the replications to be true, which we must do, the facts may be considered to be as follow:
In 1836, George W. Crist, being the owner in fee of a certain quarter section of land, made his will and devised the east half of said quarter section to his son Resin Crist. The defendant, afterwards, purchased of Resin Crist the interest which the latter claimed in the land under the [571]*571will, and gave his notes for the price; but there does not appear to have been any written evidence of such purchase. After that purchase, namely, in 1839, George W. Crist, the devisor, sold said east half of said quarter section of land to the defendant, and conveyed the same to him in fee, receiving in payment from the defendant the notes now sued on, together with a mortgage on the land to secure the purchase-money. Resin Crist, who died be- ' fore his father, left an infant son named William as his heir, who is now living. George W. Crist died on the 27th of March, 1844, without having altered his will, the Revised Statutes of '1843 being then in force.
The grounds relied on to defeat this suit are stated by the defendant’s counsel, in their brief, to be as follow:
“First. These notes, or the proceeds of the sale, belong to William Crist, the infant son of Resin.
“ Secondly. The action should have been in the name of the infant.”
We agree with the defendant that the legacy of the notes and mortgage; if there be such legacy, did not lapse by the death of Resin Crist in the lifetime of his father. By virtue of the statute, the legacy, if any, passed to William Crist, the infant son and heir of Resin, as it would have passed to' Resin himself, had he survived the testator. R. S. 1843, p. 489, s. 23. But whether there is, in fact, any such legacy is another question. Previously to the Revised Statutes of 1843, the testator’s sale and conveyance in fee to the defendant of the land, and his taking of a mortgage on the land to secure the price, after the execution of the will, would have been a revocation of the will as to said land. Adams et. al. v. Winne et al., 7 Paige, 97
It was the executor’s duty, by statute, to inventory, among other things, all bonds, mortgages, notes, and other securities for the payment of money. R. S. 1843, p. 515. There is also the following statutory provision: “When any mortgagee of real estate, or any assignee of such mortgagee, shall die without having foreclosed the right of redemption, or recovered payment of the amount secured by such mortgage, the mortgaged premises, and the debt secured thereby, shall be considered as personal assets in the hands of his executor or administrator, and shall be administered and accounted for as such; and such executor or administrator, as such, shall' have the same right to possession of the mortgaged premises, and to bring any suit or action respecting the same, or for the recovery of the debt secured thereby, and to execute, discharge, or perform any duty, act, or power, contained in such mortgage, or in the provisions of any law, as such mortgagee or assignee could, if he were alive.” R. S. 1843, p. 572.
There can be no doubt, therefore, but that the notes and mortgage before us, supposed by the defendant to be specifically bequeathed, are part of the personal estate of the testator.
It is well settled that before any legatee of personal property is entitled to his legacy,'he must have the assent to it of. the executor. The doctrine is thus stated: “ The whole personal property of the testator devolves upon his executor. 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 be applied to other purposes. Hence, as a protection to the executor, the law imposes the necessity that every legatee, whether general or specific, and whether of chattels, real or personal, must obtain the executor’s assent to the legacy before his title as legatee can be [573]*573complete and perfect. Hence, also, the legatee has no authority to take possession of his legacy without such 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. It follows, from the rule respecting the necessity of the executor’s assent, that if, without it, the legatee takes possession of the thing bequeathed, the executor may maintain an action of trespass or trover against him; so, although a chattel, real or personal, specifically bequeathed, be in the custody or possession of the legatee, and the assets be fully adequate to the payment of debts, he has no right to retain it in opposition to the executor; by whom, in such case, an action will lie to recover it.” 2 Williams on Executors, 982-3.
If the executor refuse his assent- to a legacy without cause, the legatee is entitled to relief in equity. Id. 984.— 1 Roper on Leg. 573.
The following is a late case on this subject:
A testator bequeathed to his two sons his two carriage manufactories, with all fixtures, implements, tools, stock, job-carriages, harness, and every thing appertaining to his trade in- the said manufactories. At the timé of the testator’s death, a carriage was in one of the manufactories unfinished, which was being built to the order of a purchaser. A question arose between the executors and the sons, whether this carriage fell within the above bequest; and the executors paid the legacy duty on the whole, ■ but annexed the following memorandum to the legacy receipt: “A disagreement arising between the sons, S. and T., and the executors as to whether the whole of this item belongs to the said sons, or part of the residue, the executors desire to pay the duty on the whole, leaving it for them to settle with the legatees the proportion' of duty, when the matter in dispute shall be determined.” The sons retained possession of, and finished, the carriage, delivered it to the purchaser, and received the price.
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Blackford, J. —
This was an action of debt brought by James W. Crist, executor of George W. Crist, deceased, against Christian Crist.
The suit is founded on two sealed notes for the payment of money, executed in December, 1839, by the defendant, and payable to the testator.
There are two special pleas, to which replications were filed. The replications were demurred to generally, and judgment was rendered for the plaintiff.
It is not deemed necessary to set out the’ pleadings at length. Taking the allegations in the replications to be true, which we must do, the facts may be considered to be as follow:
In 1836, George W. Crist, being the owner in fee of a certain quarter section of land, made his will and devised the east half of said quarter section to his son Resin Crist. The defendant, afterwards, purchased of Resin Crist the interest which the latter claimed in the land under the [571]*571will, and gave his notes for the price; but there does not appear to have been any written evidence of such purchase. After that purchase, namely, in 1839, George W. Crist, the devisor, sold said east half of said quarter section of land to the defendant, and conveyed the same to him in fee, receiving in payment from the defendant the notes now sued on, together with a mortgage on the land to secure the purchase-money. Resin Crist, who died be- ' fore his father, left an infant son named William as his heir, who is now living. George W. Crist died on the 27th of March, 1844, without having altered his will, the Revised Statutes of '1843 being then in force.
The grounds relied on to defeat this suit are stated by the defendant’s counsel, in their brief, to be as follow:
“First. These notes, or the proceeds of the sale, belong to William Crist, the infant son of Resin.
“ Secondly. The action should have been in the name of the infant.”
We agree with the defendant that the legacy of the notes and mortgage; if there be such legacy, did not lapse by the death of Resin Crist in the lifetime of his father. By virtue of the statute, the legacy, if any, passed to William Crist, the infant son and heir of Resin, as it would have passed to' Resin himself, had he survived the testator. R. S. 1843, p. 489, s. 23. But whether there is, in fact, any such legacy is another question. Previously to the Revised Statutes of 1843, the testator’s sale and conveyance in fee to the defendant of the land, and his taking of a mortgage on the land to secure the price, after the execution of the will, would have been a revocation of the will as to said land. Adams et. al. v. Winne et al., 7 Paige, 97
It was the executor’s duty, by statute, to inventory, among other things, all bonds, mortgages, notes, and other securities for the payment of money. R. S. 1843, p. 515. There is also the following statutory provision: “When any mortgagee of real estate, or any assignee of such mortgagee, shall die without having foreclosed the right of redemption, or recovered payment of the amount secured by such mortgage, the mortgaged premises, and the debt secured thereby, shall be considered as personal assets in the hands of his executor or administrator, and shall be administered and accounted for as such; and such executor or administrator, as such, shall' have the same right to possession of the mortgaged premises, and to bring any suit or action respecting the same, or for the recovery of the debt secured thereby, and to execute, discharge, or perform any duty, act, or power, contained in such mortgage, or in the provisions of any law, as such mortgagee or assignee could, if he were alive.” R. S. 1843, p. 572.
There can be no doubt, therefore, but that the notes and mortgage before us, supposed by the defendant to be specifically bequeathed, are part of the personal estate of the testator.
It is well settled that before any legatee of personal property is entitled to his legacy,'he must have the assent to it of. the executor. The doctrine is thus stated: “ The whole personal property of the testator devolves upon his executor. 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 be applied to other purposes. Hence, as a protection to the executor, the law imposes the necessity that every legatee, whether general or specific, and whether of chattels, real or personal, must obtain the executor’s assent to the legacy before his title as legatee can be [573]*573complete and perfect. Hence, also, the legatee has no authority to take possession of his legacy without such 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. It follows, from the rule respecting the necessity of the executor’s assent, that if, without it, the legatee takes possession of the thing bequeathed, the executor may maintain an action of trespass or trover against him; so, although a chattel, real or personal, specifically bequeathed, be in the custody or possession of the legatee, and the assets be fully adequate to the payment of debts, he has no right to retain it in opposition to the executor; by whom, in such case, an action will lie to recover it.” 2 Williams on Executors, 982-3.
If the executor refuse his assent- to a legacy without cause, the legatee is entitled to relief in equity. Id. 984.— 1 Roper on Leg. 573.
The following is a late case on this subject:
A testator bequeathed to his two sons his two carriage manufactories, with all fixtures, implements, tools, stock, job-carriages, harness, and every thing appertaining to his trade in- the said manufactories. At the timé of the testator’s death, a carriage was in one of the manufactories unfinished, which was being built to the order of a purchaser. A question arose between the executors and the sons, whether this carriage fell within the above bequest; and the executors paid the legacy duty on the whole, ■ but annexed the following memorandum to the legacy receipt: “A disagreement arising between the sons, S. and T., and the executors as to whether the whole of this item belongs to the said sons, or part of the residue, the executors desire to pay the duty on the whole, leaving it for them to settle with the legatees the proportion' of duty, when the matter in dispute shall be determined.” The sons retained possession of, and finished, the carriage, delivered it to the purchaser, and received the price. The executors, thereupon, brought an action against the sons for money [574]*574had and received; and the action was sustained on the ground that the executors had not assented to the legacy. Lord Abinger said, “ I see no evidence of assent to the taking of this particular chattel by the defendants. Putting the case in the strongest way for them, that the executors had assented to the bequest of the stock, they yet expressly withheld their assent as to this carriage, supposing that it did not form part of the stock in trade, or at least wishing for time to make up their minds whether it came within that description of property or not. And we have no right to consider whether they were right in thus withholding their assent or not. That is a question for the consideration of a Court of Equity, on a bill filed; but the legatee can maintain no action at law until the executor has assented to the bequest. Here, for some reason, good or bad, it.appears that the executors had withheld their assent; and they had a right to do so until compelled by a competent authority.” Elliott et al. v. Elliott et al., 9 Mees, and Welsb 28.
It does not appear, in the case before us, that any assent was ever expressly given by the executor to the legacy in question; nor are there any facts stated from which an assent can be presumed.
This is a suit by an executor on notes given by the defendant to the testator — the notes being secured by a mortgage on real estate. The defence is, that the notes and mortgage were specifically bequeathed to one William Grist, in whose name the suit should have been brought.
We have shown that the notes and mortgage are part of the personal estate of the testator, and that, supposing them to have been specifically bequeathed by him, they cannot be said to be the property of the legatee until the executor shall have assented to the legacy. No such assent being shown, the defence must fail.
A debtor to an estate, where the" debt has been specifically bequeathed by the testator, cannot, before the executor has assented to the legacy, say to the latter “I will notpay you.” The Bank of England v. Parsons, 5 Ves. 665.
Whether, if the executor had assented to' the legacy, [575]*575the suit on the notes should not still be in his name, we have not examined.
J. Perry and J. S. Reid, for the plaintiff.
J. Yaryan, for the defendant.
Per Curiam. —
The judgment is affirmed with costs.
See 4 Kent’s Comm. 525.—Colter v. Layer, 2 P. Williams, 622.—Rider v. Wagner, id. 332.—Mayer v. Gowland, Dickens, 563.—Knolly v. Alcock, 5 Ves. 654, and Walton v. Walton, 7 John. Ch. R. 258.