Opinion
(December Term, 1836.)
The second proviso to the third section of the act of 1806, ( Rev. ch, 701,) was prospective as well as retrospective in its operation; and slaves placed by parents in the possession of their children, since that act, and remaining in the possession of such children, until the death of their parents, intestate, are to be taken as advancements to the children.
The case of Bull's Admr. v. Brooks, 3 Murph. 133, approved.
THIS was an action of TROVER, for certain slaves, submitted to his Honor Judge SAUNDERS, at Onslow, on the last Spring Circuit, upon the following case agreed:
No counsel appeared for the plaintiff in this court.
J. H. Bryan, for the defendant.
Mabury Petteway, in the year 1823, made a parol gift of the slaves in controversy, to his daughter Matilda, the wife of the defendant, William Todd. The slaves were placed in the possession of Todd, who kept them for more than three years, and had them in possession at the time of the donor's death. Petteway died in 1834, intestate, and the plaintiff took out letters of administration upon his estate; demanded these slaves of the defendant, and, upon his refusal to deliver them up, brought this action. If his Honor should be of opinion, that the plaintiff was entitled to recover, a judgment was to be entered for him for seven hundred dollars, the value of the said slaves; if otherwise, a judgment of nonsuit was to be entered, with liberty to either party to appeal. Upon hearing the case, his Honor directed a nonsuit, and the plaintiff appealed.
— The case of Bull's Adm'r v. Brooks, 3 Murph. Rep. 133, fixed the construction of the act of 1806, ( Rev. ch. 701,) so as to embrace cases of parol gifts to children, made subsequent to that act, as well as those made before. This was probably against the real intention at the time of passing the act; but it is too late now to revive the question.
Upon the case agreed by the parties, the defendant is entitled to the slaves, as an advancement to his wife; and the judgment must be affirmed.
PER CURIAM. Judgment affirmed.