The opinion of the Court was delivered by

Though this bequest is not strictly specific, as the identical goods bequeathed are not designated, yet in the event of goods being selected in discharge of it, it partakes of that character; and when the choice is made and the assent of the executor takes place, the rule is that the legacy vests in the legatee, and that his title becomes complete and perfect. The law has prescribed no particular form to express the assent on the part of the executor, and it may be express or implied. The executor may not only in direct terms authorize the legatee to take possession of his legacy; but his concurrence may be inferred either from indirect expressions or particular acts, and such constructive permission shall be available. 2 Williams on Executors 846. Thus if the executor informs the legatee that he intends him to have the legacy according to the devise, 1 Stra. 70, or that the legacy is ready for him whenever he will call for it, Shep. Touch. 456, such declarations amount to a good assent to a legacy.

The court below therefore were correct in stating to the jury that if the executrix directed certain articles of property to be put away, declaring they belonged to her deceased daughter, and the defendant, *512on demand, had refused to deliver them, the plaintiff was entitled to recover. That was a specific appropriation of them to the daughter, and, in point of law, an assent to the bequest, by which the exclusive right of property therein was vested in the daughter; and to such right of property the law annexed the possession, when there was no adverse claim or possession by any other person : and the possession of the wife was the possession of the husband, the plaintiff in this suit. There is no contradiction in the two clauses extracted from different parts of the opinion of the court, and set in opposition to each other in the errors assigned. In the first the court is speaking of the mere reservation of the property from appraisement, for the purpose of satisfying a bequest to the sisters, holding that insufficient; a point of time different from that in which the executrix is stated to put away those which were specifically for Mrs M’Dowell, declaring them to belong to her: and in relation to that time, the charge was as favourable to the defendant as he could have asked. In another error assigned, the second error, the court below were also speaking of this point of time, and negativing the right of the plaintiff to recover; stating that he would have an absolute right only to such property as his wife had either in actual or legal possession; that is, such as were actually in his possession, or such as were so in contemplation of law.

As to the general allegations in the first and fifth errors, I am of opinion that the defendant has entirely failed to substantiate them.

The witness was properly rejected. Some of the articles were claimed by the plaintiff as having been purchased by the wife, or been given to her by the father in his lifetime. The defendant claimed the whole as part of the testator’s estate, and, it would seem, insisted on a receipt to the executrix, as such, for them. The witness, a brother, was clearly interested in supporting this claim of the defendant, because, if it succeeded, it went to increase the general assets of the estate, and leave the more for the other legatees.

Judgment affirmed.