Opinion
December Term, 1837.
Slaves advanced by parol to a daughter by her father upon her marriage, and remaining in the possession of her husband until the death of the father intestate, are, under the act of 1806 (1 Rev. Stat., ch. 37, sec. 17), an advancement at the time of the marriage; and if the daughter die before her father her husband, and not her children, are entitled to them.
IN the year 1821, Hollowell Old put into the possession of the defendant, who had then recently intermarried with his daughter, several negroes that have ever since remained in his hands. The defendant's wife died in January, 1825, and her father died in the month of May following, intestate. Two children were the issue of the marriage, viz.: the plaintiff and a brother who died an infant of tender years in September, 1825. The defendant was appointed guardian to the plaintiff and acted as such until a short time before the filing of this bill, when Thomas Hinton was duly appointed in his stead. This bill was filed to call the defendant to an account of his guardianship; and among other matters, claimed that the defendant should surrender these negroes as the property of the plaintiff. The defendant submitted to an account, but insisted upon these facts charged in the bill and admitted in the answer, that the plaintiff had no interest in the negroes, but that they belonged wholly to him. It was agreed between the parties as a fact, that the administrator of Hollowell Old set up no claim to the negroes; and they prayed the court to declare whether the advancement by Old, enured to the defendant or to the issue of his wife.
No counsel appeared for plaintiff in this Court.
Devereux for defendant.
If, under the circumstances stated, the negroes became the property of the children living at the death of their grandfather, the representative of the deceased child ought to be brought before the Court; and then as the father would be the sole next of kin of the deceased child, the plaintiff could claim no part of his share. But as there is no difficulty (588) in the question on which our opinion is asked, we shall not defer it, because of any formal defects in the proceedings.
The act of 1806 (1 Rev. Stat. c. 37, sec. 17) in general terms makes void all parol gifts of slaves; and then excepts the case where a parent shall have put a slave in the possession of a child and shall afterwards die intestate without having resumed such possession. In this case the act declares that the slave shall be considered an advancement made by the parent to his child. In the construction of this act, a question occurred, at what time, was the advancement made? Was it when the possession was given, or at the moment of the parent's death? It was solemnly decided that the advancement was made when the slave was placed with the child — that this act was either a gift subject to revocation by the parent, or a gift inchoate and imperfect, but afterwards consummated by the parent dying intestate without having disturbed the possession — and that in either point of view, when rendered irrevocable or when consummated, it became in law an absolute gift from the commencement. Stallings v. Stallings, 1 Dev. Eq. Rep., 298. This decision, which has never been controverted, determines the question submitted to us. The advancement was a gift of the slaves now claimed by the plaintiff to his mother while she was the wife of the defendant, and therefore, in law a gift to the defendant.
This declaration will be made and the account asked and submitted to is to be taken before a commissioner to be agreed on by the parties.
PER CURIAM. Decree accordingly.
Cited: Meadows v. Meadows, 33 N.C. 150; Harrington v. Moore, 48 N.C. 57.
(589)