Plaintiff proved the Negro in possession of defendant though not at the place laid in the declaration. He showed his father's will, wherein the Negro was bequeathed to defendant and two other brothers jointly, one of whom is dead, the other absent but under age. Plaintiff showed also that he had been appointed guardian to defendant and to the absent brother.
Defendant showed the same will as his title and, by the records of the Orphans' Court, that plaintiff as executor had passed a final account, and a balance thereon in favor of defendant.
BASSETT, C. J.
Non cepit does not confine the taking to the place in the declaration unless defendant shows a taking elsewhere, 2 Esp.N.P. 12. Legatee may bring trover or replevin against a stranger for a legacy given, 5 Bac.Abr.; but a legatee ought in this case to prove a demand of a legacy. Only account will lie by a joint owner of personal property. I am of opinion that the property did not vest in the guardian from the date of the guardian bonds, because the Negro could not be divided, for the possession was not delivered to all the three minors, for he could not come at him unless he could be cut up!!!!
Wilson's punctuation.