Opinion
(June Term, 1850.)
1. Where a parent, on the marriage of his daughter, delivers negroes to his son-in-law, his subsequent declarations, in the absence of the son-in-law, are not competent evidence.
2. Where negroes are delivered by a parent to a son-in-law, at the time of his marriage, and the son-in-law, afterwards, in the lifetime of the parent, sells the negroes, they are still to be considerer [considered] as a gift by the parent, and the advancement is to be valued at the time of the delivery.
CAUSE removed from the Court of Equity of GRANVILLE, at Fall Term, 1849.
J. H. Bryan and J. T. Littlejohn for plaintiff.
Gilliam and Lanier for defendant.
Mills Taylor died in 1840, intestate, and leaving the following children: James P. Taylor, Elizabeth Jane, wife of John Gill, and Frances, the wife of William P. Forrest. Elizabeth (529) died after her father, and John Gill, her husband, administered on her estate; and William P. Forrest was then duly appointed administrator upon the estate of Mills Taylor, and took into his possession all of the personal property belonging to it. The intestate, at the time of his death, owned a number of slaves, which were divided among the children.
The bill is filed against William P. Forrest and his wife, Frances, and against said Forrest as administrator of Mills Taylor, by the other children and those who represent them, for an account and settlement of the estate. It charges that during his life Mills Taylor lent to William P. Forrest a negro boy by the name of Stephen, whom the said Forrest subsequently sold in the lifetime of Mills Taylor for $1,050 cash, which he appropriated for his own use, and for which he is chargeable, together with interest. It further alleges that the defendant Forrest has exhibited a large account against the estate for the board of Elizabeth Jane Taylor, the intestate of the plaintiff John Gill, which, it charges, is unjust, as the said Elizabeth was, during the time she stayed with Forrest, a visitor at his own request; and if she was a boarder, the charges are too high.
The answer admits the sale of Stephen, and alleges that he was given to the defendant Forrest by his father-in-law, Mills Taylor, when he was quite young and of little value; and that he is an advancement to him, and that, as such, he is ready and willing to account for him. It further alleges that for the time board for Elizabeth is charged she was not a visitor with the defendant, but, he being a teacher, she was placed by her father with him as a pupil, for whose board he promised to pay; and that he did, from time to time, furnish the defendant with provisions of different kinds, for which he is duly credited in the account filed by him.
(530) Upon the coming in of the answer, replication was taken, and upon the hearing a decree for an account was made and a reference to the master had to state the administration accounts of the defendant Forrest. The master made a report, which is excepted to by both parties.
In arguing the exceptions the parties agreed to bring before the Court for the present only those relating to the negro Stephen and the board of Elizabeth Jane.
Exception 11 is as follows: That the master, in and by his said report, hath certified that he finds that the negro boy Stephen was lent to the defendant and his wife, Frances, by Mills Taylor, the defendant's intestate, and has charged this defendant with the sum of $1,050 for which the said negro was sold by the defendant; whereas the master ought to have certified that the said negro Stephen was given by the said Mills Taylor to the defendant and his wife, Frances, and ought to have charged this defendant with only the value of said negro at the time he was delivered by the said Mills Taylor to the defendant and his wife, Frances, and as an advancement to them. This exception must be allowed. It is not difficult to see how the master was led into the error committed. All the testimony cited by him as sustaining his view are conversations and declarations of Mills Taylor, held and made by him after the delivery of Stephen and in the absence of the defendant. This testimony is inadmissible. This point is fully established by Cowan v. Tucker, 30 N.C. 426.
But another and much more important question is still to be disposed of. Stephen was sold by the defendant Forrest before the death of Mills Taylor. Was he, therefore, within the meaning of the proviso to the act of 1806, in the possession of the donee so as to render it an advancement? The language of the act is: "Provided, that when any (531) person shall have put into the actual possession of his or her child or children any slave, and the said slave shall remain in the possession of such child or children at the time of the death of such person,"etc. The case is very clearly not within the letter of the act. Is it within its meaning? We are told that if we adhere to the words alone of an act, we adhere to the bark. And if, in cases arising under the proviso to the act of 1806, we adhere strictly to the words, not one-half of them can take effect. In this case the delivery, the gift, was made to Forrest. He was not the child of Taylor; and yet was it ever doubted such a gift came within the act? And why? Because it is certainly within the meaning of the proviso. We are at liberty to look to the meaning of the act; and that meaning is the law, when discovered. What, then, did the Legislature mean in using the words, "and the said slaves shall remain in the possession of such child at the time of the death of such person"? It means that the parol gift shall take effect as an advancement in all cases where the parent dies intestate without resuming the possession. Such is the opinion of the Court in Stallings v. Stallings, 16 N.C. 298. The language of Judge Hall is: "If the parent suffered the child to remain in possession during his life," etc. "The law is intended to give the parent power over property thus situated; but if he did not think proper to exercise it, the property should then be considered an advancement." The language of Judge Henderson in the same case is: "The act of putting the property into the possession of the child makes the gift, if it be not subsequently revoked, or if consummated by the parent's permitting the slave," etc. The language of the Chief Justice in Cowan v. Tucker, 27 N.C. 80, is still stronger to the same effect. Speaking of the proviso we are considering, he says: "It meant merely that where a parent intended to make a gift to a child, and put the slave into his possession, and did not in his lifetime retract the gift nor dispose of the property by making a will," etc. So far as the parent's right to the slave is concerned, (532) the gift is not consummated until his death. He may at any time revoke it, either by taking possession or disposing of him by will. If he does neither, it is evidence that he intended the gift to take effect as an advancement. And as he can reclaim the negro from the possession of any one if that possession has not ripened into a good title by laches, so it makes no difference in whose possession the slave actually is at the time of his death.
When Cowan v. Tucker was a second time before the Court, 30 N.C. 426, the same idea was again expressed by the Court, namely, that not resuming the possession by the parent and his failure to make any other disposition during his life is substantially the case stated in the proviso; and the slave is to be considered as in the possession of Forrest at the time of the death of Taylor, and was, therefore, an advancement to him; and is to be valued at the time of the delivery. The plaintiff's first exception is overruled, in confirming the exception of the defendants.
Exception 13 of the defendants is overruled. We are of opinion, from the proofs in the case, that the price allowed by the master for the board of Elizabeth Jane was a fair and proper one; and that she was not a visitor at the house of the defendant, but a boarder. This embraces the plaintiff's second exception, which is also overruled.
Exception 14 of the defendant is sustained, as the conclusion of the master was arrived at through an error as to Stephen.
PER CURIAM. Decree accordingly.
Cited: Shiver v. Brock, 55 N.C. 140.
(533)