#### Smith, executor of Smith, v. Hargrave.

I From Davidson. J

Where A conveyed a slave to B, and on the same day B by writing declared that he “ put the said slave into the possession of A, and did give and grant the services of the said slave to A during her natural life, free from any charge or claim for such services during her natural lile:” it was held, that this did not operate to convey the title to the negro to A, but parted with the possession only, without compensation for his services.

DEr/.YUy- for negro slave Tom. The plaintiff claimed title to the said slave under a deed of gift made to his testator by Mary Buckhart, on the 11th of May, 1816, duly proved and registered.

The defendant pleaded the general issue, and rested his defence upon a deed executed by plaintiff’s testator to Mary Buckhart on the same day, 11th of May, 1816, which deed is in the following words, viz:

*561I, Peter W. Smith, in consequence of a deed of gift made to me the 11th day of 54av, 1816, by Mary Buckhart, for a negro boy slave named Tom, do hereby put the said negro boy named Tom, into the possession of the said Mary Buckhart. and give and grant the services of the said negro boy named Tom to the said Mary Buckhart during her natural life, free from any charge, claim or demand for his services, during the term of the natural life of the said Mary Buckhart, her natural life. In witness whereof I have hereunto set my hand and seal this 11th day of May, 1816.

(Signed) Peter W. Smith. [L. S-]

This deed was proved on the 18th of October, 1824, and thereupon registered.

On the trial below, it appeared in evidence, that on the 11th of May, 1816, when the deeds were executed, Mary Buckhart made a formal delivery of the slave Tom, to Peter W. Smith, at the same time that she delivered the deed of gift: and that immediately thereafter, Peter W. Smith delivered to her the slave Tom. Mary Buckhart lias since died, and the defendant claimed under her will.

The jury found a verdict for the plaintiff, subject to the opinion of the Court upon the question, whether the deed made by Smith to Buckhart vested in her the absolute estate in the slave Tom? The Court holding that it did, gave judgment for the defendant, and the plaintiff appealed to this Court.

J. Martin, for appellant.

The conveyance is to be construed as a contract for service. If the Court can, by construction, give effect to the intention of the parties, they will do so. This principle is illustrated by the case of Wright v. Cartwright, (1 Burrows 282.) where a term of ninety-nine years was granted to one, if she so long lived, and after her death to another; there to effectuate the intent, term was construed to mean, not the estate, but the number of years.

The grant of service is not a grant of the estate or property in the chattel. Service is a term not so extensive as the word use. Use means the profit, and of course embraces the increase of a female slave, which service would *562not. But at common law, a use can be of chattels, (Shcp.-Touch. 501.) it is neither jus in re nor jus ad rem. (Ibid.)

The cases collected upon this subject in Fearne on Ee-mainders, are where the bequest of the chattel have been construed to mean the use, ut res magis valeat quam pe-reat; but never has it been held that the use, much less the service, was the estate in the chattel, when the effect would be ut res magis p'ereat quam valcat.

Ruffin, contra.

The general rule is admitted, that a grant for life in a chattel consumes the whole estate; and it is contended that this is an executory contract, and that the grant of the use or the services, does not convey the property itself. But in this case, possession, the use and the profits, all centre in one person: wherever one has the use and another the possession, there is a trust, but whenever the use and possession are united, the use is merged. (Co. Lit. 4 b.)

Here was an actual delivery, and that to the person entitled to the services. What is the property in ,a negro, but the possession and profits or services? The cases cited are those of uses at the common law.

As' to the intention of the parties, it is immaterial, for the intention is an illegal one. What would have been the construction of the casein Burrows, if the grant had been for life with remainder over? clearly the Court would have held it void, and yet the intention would be manifest. The devise of the occupation and profits of a term, has been heíd a devise of the term itself. (2 Plow. 541.)

Hall, Judge.

The operative words in the deed from the plaintiff’s intestate to Mary Buckhart, are very different from those which are generally used in conveying title to property of this description. They are, that he puts the said negro boy named Tom into the possession of the said Mary, and gives and grants the services of the said negro boy to the said Mary during her life, clear of any demand for his services during the time of the natu-*563pal life of the said Mary. Nothing is said respecting the title of the said negro, and I think the grantor intended to part w ith the possession only of said negro, and exempt Mary Buckhart from all accountability for the services of said negro during her life; and if it were allowable to look into the other facts set forth in this case, this opinion would appear to me more strongly fortified; for it appears that Mary Buckhart, who was the owner of this slave, had conveyed her title to plaintiff’s testator on the same day that the conveyance was made to her as before expressed. Now it is not likely that she would have made that conveyance, if she had intended that the same interests should be reconveyed to her on the same day. I think that judgment should be entered for the plaintiff.'

The rest of the Court concurring in tfiis opinion,

Judgment reversed.