By the Court.

delivering the opinion.

Was the Court below right in overruling the motion for a new trial ? We think so.

The grounds of that motion were two; one the charge v given, the other the refusal of the charge requested to be given.

Was the charge given, right? That charge was in effect, as follows; that if the executrix, Mrs. Perkins “relinquished her life estate in the negroes, and distributed them amongst the children,” “ and kept one share of the negroes, that relinquishment and division was an assent to the legacies,” and she was divested of the title, which, as executrix, she had to the negroes, and consequently that there was no title left in her which could pass into her successor, the administrator de bonis non, and therefore, that he was not entitled to recover.

On this charge, there seem to be only two questions; one, did the relinquishment and division, amount to an assent by the executrix, to the legacy to the remaindermen ? the other, if so, did that assent divest her of all title as executrix, and *416so leave none in her, to pass to her successor, the administrator de bonis non, the plaintiff in trover?

The relinquishment of her life interest, shows that she was claiming that interest under the will — she therefore, had assented to the legacy, so far as it was a legacy of an estate to her for her life; and that was an assent to it, so far as it was a legacy to the remaindermen. a If a term of years, or other chattel, be bequeathed to A. for life, with remainder to B., and the executor assents to the interest of A., such assent will enure to vest that of B.; and e converso ; for the particular estate, and the remainder constitute but one estate.” 2 Wms. exor’s, 986, citing the cases.

The division was • a fact still stronger; that showed, that she also actually assented to the remainder part of the legacy.

Then, the part of the charge, to which the first question applies, was right.

Perhaps the assent of the executor, to a legacy, of even the slightest interest in a piece of property, is sufficient to divest him of all title to that prope^q and so, to prevent him from recovering the property at the termination or extinction of that slight interest. Id. 988.

But it must certainly be true, that if the legacy be of the whole interest in a piece of property, and the executor assent to that legacy, the assent will divest him of all title to the property, and so, will prevent him from ever recovering it; because in that case, the whole interest in the property passes to the legatee, and the right to sue for it, is a right of his. And here, the legacy was of the whole interest; it was a gift to Mrs. Perkins, for her life, with remainder to the children. The right then to sue for the property, passed out of the executrix, by her assenting to the legacy. If so, neither she, as executrix, nor any other representative of the testator’s estate, could have the right to sue for the property. The right to sue for it, was in the legatees, or those claiming under the legatees. What particular persons these are, is of *417no consequence, in the present case. The Court below, it is true, expressed an opinion, as to the persons in whom was the title to the negroes in dispute, but it was not necessary, that the Court should do so, and we do not pass on that opinion. It is sufficient, that the part of the charge was right, which said, that if there was an assent, to the legacy, the plaintiff could not recover; it will be time enough to decide the question, whether the negroes belong to the children of the deceased child, or to her husband, when a case between the children and the husband arises.

We think-, then, that the charge was right, so far as the second question applies; and, therefore, that it was generally right — i. e., right in the conclusion to which it came, that the plaintiff was not entitled to recover — if there was an assent to the legacy.

Was the second ground of the motion good; the refusal of the charge requested ?

If Mrs. Perkins, the executrix, received the negroes for the children of Epsey Harrison, who was dead, it shows, it is true, that she thought that the children, and not the husband of Epsey Harrison had succeeded to Epsey Harrison’s rights in the negroes; but, it equally shows, that she had assented to the legacy, as a legacy to Epsey Harrison, who, and not the children, was the legatee. That the administratrix agreed that the children of Mrs. Harrison might receive the legacy, is evidence that she would have agreed, that Mrs. Harrison herself might receive it, if Mrs. Harrison had been alive.

We think, then, that the Court was right, in refusing to charge the jury, that Mrs. Perkins’s receiving the negroes for the children of Epsey Harrison, and not for Epsey Harrison’s administrator, did not amount to an assent to the legacy to Mrs. Harrison.

Judgment affirmed.