An attentive exámination, aided by the argument of counsel, has not enabled us to discover any error in the bill of exceptions, 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 his testator, of which the case of Allston v. Foster, 1 Dev. Eq. 337, 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 Cheshire v. Cheshire, 2. Dev. and Bat. Rep. 254. And the facts proved in this case were certainly proper to be left to the jury for that purpose; White v. White, 4 Dev. and Bat. Rep. 401. Whether the testimony was fully sufficient to justify the verdict, we have no right to inquire. If it were not, the Judge in 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 subtantially the same as was prayed by the defendants, and of course they cannot complain of it.

Feb CueiaM. Judgment affirmed.