#### THOMAS BELL v. JOHN CULPEPPER, et al.

The doctrine of election, by which a person is prohibited from taking a benefit under a will, and at the disappointing the plain provisions of that will in favour of third persons, is confined to courts of equity, and does not atfect titles at law. *

A residuary clause in a will, by which all the remainder of testator’s real and personal estate was directed to be sold by his executors, will not pass slaves which he had given to a child by parol prior to 1806, but which he had subsequently obtained possession of, and held as bailee until his death, nor will it authorize a sale of said slaves by the executors so as to defeat the title of the donee under the act of 1784, (Rev. ch. 225, s. 7.)

The cases of ICnight v. Thomas, 1 Hay. 289 ; Cutlar v. Spiller, 2 Hay. 61; Latham v. Outen, Ib. 66; Anon. Ib. 86; West v. Dubberly, N. O. Term R. 38 ; Sherman v. Russel, 1 Car. Law Repos. 467; M'Cree v. Houston, 3 Murph. 429; Watford v. Pitt, Ib. 468 ; Lynch v. Ashe, 1 Hawks, 338 ; Rhodes v. Holmes, 2 Hawks, 193, approved.

Detinue for • two slaves by the names of Esther and Bob. Pleas, non detinet and statute of limitations.

Upon the trial at Anson, on the last Circuit, before his Honor Judge Saunders, the plaintiff claimed the slaves under a parol gift to his wife, made by her father, Richard Russell, Sen., in the year 1802, and introduced several witnesses, who, if they were to be credited, clearly established the fact of the gift as alleged. He further proved, that he intermarried with the daughter of the donor in 1820; that he soon after went off to house-keeping; that the slave Esther being then confined in childbed, was not taken home with him immediately, but was sent to him in about a year afterwards, and, together with her child, *19remained with him more than twelve months, when she ran off and returned to her old master. The being involved in his circumstances, his father-in-law said he would not send back Esther and her child, but would keep them until his son-in-law should get out of debt. Accordingly, Esther and her children (she having had another,) remained in the old man’s possession from that period until his death in 1834, he repeatedly declaring during the time, that he had given Esther to his daughter, the wife of the plaintiff, and that the said negro woman and her children belonged to his daughter.

On behalf of the defendants several witnesses were examined as to the alleged gift, and for the purpose of establishing an adverse possession in the father-in-law. The defendants then introduced the will of Richard Russel], Sen., in which the testator bequeathed to the plaintiff’s wife and children a negro girl by the name of Charlotte, who was a child of the woman Esther. In the will there were several other specific legacies, in none of which, however, were the slaves in controversy included; and then followed a residuary clause directing the remainder of the testator’s estate, both real and personal, to be sold, and the proceeds to be divided between certain persons therein named. The defendants then proved a sale of the slaves in Question by the executor, and a purchase by themselves at a full price, evidenced by a bill of sale properly authenticated. They proved also that when the plaintiff heard of the bequest of the girl Charlotte to his wife and children, he said he was satisfied; and that he afterwards had the said girl in possession. For the defendants it was contended, and the court was requested so to instruct the jury, that however they might find as to the gift and possession, as Richard Russell died having the slaves in his possession, they passed by the will, and the defendants being purchasers for value (whether with or without notice,) at the sale by the executor, were protected by the act of 1784; and further, that as the plaintiff had taken the girl Charlotte into his possession, it was such an election to take under the will, that he could not now claim in contradiction to it. But his Honor, after submit*20ting to the jury the questions of the gift, and the possession of the father-in-law, whether he held adversely, or as bailee of the plaintiff, further instructed them, that if they should find for the plaintiff on both these points, then the slaves Esther and Bbb formed no part of the testator’s estate, and did not pass under his will; and that the plaintiff’s right to recover was not affected by his having received into his possession the girl Charlotte. Under this charge a verdict was found for the plaintiff; and a new trial being refused, the defendants appealed.

Badger, for the defendants.

Mendenhall, for the plaintiff.

Gaston, Judge.

The exception taken below to that part of the judge’s instruction which held that the plaintiff was not barred of his recovery by reason of an election to take the negro Charlotte under the will of Richard Russel, has very properly been given up here. The rule of election in the sense in which it is insisted on by the defendant, is confined exclusively to courts exercising equitable jurisdiction, which have it in their power to restrain men from the unconscientious assertion of acknowledged legal rights. They hold that it is against conscience for a man to take a benefit under a will or other instrument, and at the same time disappoint other plain provisions of that will, made in favour of third persons. Of course, he may keep, if he pleases, what was before his own; for the mistake of the donor cannot take away his property; -but if he will insist on enjoying the interest given him by the instrument, they will by proper decree provide, that so enjoying it hé shall give effect as far as he can to the other provisions of the instrument. It is not perceptible to us that any case for an election has been made out; but however that may be, the law certainly raises no election in this case.

The exception taken to the residue of the judge’s instruction must also, we think, be overruled. If the slaves in controversy were not held by Richard Russel as his property, but were merely in his occupancy as in that of the bailee of the plaintiff, it is very clear that they were not comprehended in the bequest to his residuary legatees, and *21did not vest by law in his executors. The construction of the act of 1784 (Rev. ch. 225, s. 7,) must now be considered as. perfectly settled. A long series of decisions has established that under that act a parol gift of slaves may be good against all persons except the creditors of the donor, or purchasérs from him. See Knight v. Thomas, 1 Hay. 289. Cutler v. Spiller, 2 Hay. 62. Latham v. Outen, Ibid. 66. An Anonymous Case, Ibid. 87. West v. Dubberly, N. C. Term Rep. 38. Sherman v. Russel, 1 Car. Law Repos. 467. M‘Kee v. Houston, 3 Murph. 429. Watford v. Pitt, 3 Murphy, 468. Lynch v. Ashe, 1 Hawks, 338. Rhodes v. Holmes, 2 Hawks, 193.

Per Curiam. Judgment affirmed.