#### WASHINGTON M'CONNELL, et al. v. ALLEN PEOBLES, et al.

Where a father, since 1806, made parol gifts of slaves to his children, and afterwards by his will directed all his slaves to be equally divided between his six children, it was held, that the slaves given to the children, and in their possession at the death of the testator, were to be included in the division. But it was also held, that no account was to be taken of slaves so given, which the children had sold during the testator’s lifetime; neither was a slave purchased by a child and paid for by the father, to be estimated as one of the father’s, in making the division.

The bill, stated that Lewis Peobles died in the year 1834, having made his will, whereof he appointed the defendant Allen executor, and thereby, among other things, bequeathed as follows : “ My will is, that all my negro slaves be laid off into six lots, made equal in value, and then drawn for by my six children, namely, Betsey, &c., and the heirs of Patsey M'Connell, deceased.” The plaintiffs were the children of Mrs. M'Connell, and the defendants the other legatees. The plaintiffs alleged that *602the several defendants had, in the lifetime of the testator, received several slaves from him under parol gifts since 1806, and had sold some of them. The prayer was for a discovery of the negroes sold, and an account thereof; and that the prices of the negroes so sold, as well as the negroes in the possession of the defendant Allen, as executor, and those held by all the defendants under the parol gifts, might be divided into six equal parts, and one part assigned to the plaintiffs.

Dec. 1837.

The defendants in their answers insisted, that the provision above set forth in the will of the testator applied only to the negroes in his possession at the time of his death. They admitted that they had received negroes from the testator as gifts by parol; and that in many cases they had, with his knowledge, and without any opposition from him, sold or exchanged those slaves; and they resisted all claim to an account of the money received for the slaves so sold or exchanged, or a division of those not sold or received in exchange. The defendants, Thomas Smith and wife, alleged, that at the time of their marriage, the testator desired to give them a negro girl, but it not being convenient to do so out of those in his own family, he told these defendants to purchase one, and he would pay for her; and that accordingly they selected a girl named Hannah, and bargained for her with a dealer in slaves; and the next day the testator came to their house and paid for the girl; when the dealer executed a bill of sale for her, and delivered her to Mrs. Smith; and that the girl had ever since remained in their possession.

Winston, for the plaintiffs.

J. T. Morehead and W. A. Graham, for the defendants.

Daniel, Judge,

after stating the facts, proceeded as follows : — Allen Peobles will of course account for all the slaves and their increase which came to his possession as executor of Lewis Peobles. It is also the opinion of the Court, that the said Allen, and all the other defendants must account to the plaintiffs, for the purpose of division, for all the slaves and their increase, which had before *603belonged to the testator, and had been placed in possession of the defendants by the testator in his lifetime, and which were alive at the death of the testator, and had not been then sold by any of the defendants. The act of 1806, (see 1 Rev. Stat. ch. 37, sec. 17,) declares that all gifts of slaves shall be void, that are not made in writing, and authenticated as there prescribed. The gifts of the slaves by parol, which the defendants set up under their father, are therefore void. It has been frequently decided in this Court, that slaves held by children under parol gifts from their parents, were considered in law only as bailments. If the parent had died intestate such parol gifts to children would be advancements. But in this case, as the father did not die intestate, but testate as to his whole personal estate, the slaves thus bailed to his children (the defendants,) and which were in their power or possession at the death of the testator, must be accounted for. We are, however, of the opinion that the plaintiffs have no right under the will, to call for an account of the money for which any of the slaves were sold, and where the slaves were actually sold before the death of the testator. The clause in the will is, that “ all my negro slaves be laid off into six lots.” His slaves here meant, were those left at his death in possession of his executor, and those slaves that were then in possession of the defendants as his bailees. The money which the defendants held, and which was the price of the bailed slaves by them sold, cannot, by any fair construction of the will, be made to mean “ negro slaves.” It is his “ negro slaves” which belong to him, (the testator,) at his death, that are directed by the will to be laid off into six lots; and not any other part or portion of his personal estate or choses in action.

The Court is of opinion, that the slave Hannah and her issue, mentioned in the answer of the defendants Smith and wife, are not to be brought into account for the purpose-of making a division of the testator’s negro slaves. The-plaintiffs have not shown by any means to the satisfaction of this Court, that the slave Hannah ever belonged to the testator. We are unable to learn from, the answer of Smith and wife, (the only evidence on this point in the *604cause,) that the testator contracted with the slave trader for the girl Hannah. But, on the other hand, a very strong inference arises from what is stated on this subject in the answer, (which has been made use of as evidence by the plaintiffs,) that not only the selection of Hannah by Mrs. Smith, was made at the slave station of the trader, but that she and her husband stipulated with the trader as to-the amount of the price and contracted for the purchase. The father, on the next day, advanced the money to the trader. But did he contract with and purchase of the trader, or only give the money ? The trader delivered the slave, not to the father, but to Mrs. Smith, who took her home from the station, and she and her husband have kept the girl and her issue as their own undisputed property ever since. Under these circumstances, this Court is unable to say, that the slave Hannah ever was the property of the testator. It is a point which it behooved the plaintiffs to establish, that the slave Hannah once belonged to the testator. They have not done so; therefore, we declare, that the slave Hannah and her increase, are not to be taken into the account in ascertaining what slaves belonged to the testator at his death, that were subject to division among his legatees. The decree will be in conformity to the principles declared in this opinion.

Per Curiam. Decree accordingly.