Newbern,

January Term, 1801.

#### Foy vs. Foy.

npHE bill states that Thomas, a brother of both the parties, purchased in conjunction with the defendant, a tract of land, and paid half the purchase money 1 That title for the whole was made to the defendant, who promised to. convey to Thomas— and that afterwards Thomas died. The answer, denied these allegations. The proofs supported the bill, but evidence was given on the side of the defendant, that Thomas, before his death, said, if he (Thomas) should die without a child, that he did notintend.the defendant should be called on for an execution of his promise 5 and when his will was written,, he assigned ab a reason for giving more slaves, to the complainant than he did So defendant, to be, because defendant had the half of. the lands purchased by his money, which made his share cquaL

Haywood, for complainant

A trust estate when once rais~ ed, is governable by the rules of. the common.law, with respect ko its tranmission and descent.. It will descend according to the rules of the common law 5 it is subject to a tenancy by the courtesy 5 a devise of it must be attested in the same manner as the.device of a legal estate: S Ba. Ah. 391, 2 P. W. 645, 1 F,. W. 1092 1 Bl. Re. 160,161, Sand, on Uses, 188. In the latter case, the intention to give to the devisee, was as clear, if' not clearer, chan the intention- in the present case to give the trust estate to the defendant; but that intention could not prevail, because die rule of law required.three attesting witnesses. So here a trust estate in one half being clearly in Thomas, how. was he divested of it? Hot by any. deed-registered and duly registered which our law requires in regard to legal estates, bat-by a mere parol declaration, which if not equal to.the purpose, will still leave the trust estate where it wasj and then at the time of his death, it passed as to one half by his will to the complainant. There is great-reason why the rules of law should be applied to such estates : they are generally created íor helpless and weak persons, and children not having prudence and strength of mind enough to take care of themselves, or for married women ; such persons in short, from whom parol declarations can Le most easily drawn, and who least weigh their expressions;, *132If a deed be not requisite, how liable are all such estates to be defeated? By false testimony or the unweariness of those for whose benefits such estates are most commonly provided.

Baker, e contra

It cannot be denied that if a trust estate existed at all in Thomas, its creation is evidenced by parol; and as every thing may be dissolved by the same ceremony with which it is made, it seems to follow that a parol declaration is sufficient to pass a trust estate.

Taylor, Judge.

There can be no doubt as to the justice of this case : It is evident Thomas intended his half of the land to remain with the defendant; but if there be any such rule as is contended for by the complainant’s counsel, it must be followed. I will take time to consider. — And finally, he decided that the parol evidence was sufficient. He said the statute of frauds in England enacts that no creation of trust or declaration of one shall be proved by parol evidence : whence it was to be inferred that before that act, such parol declaration was valid, and our law is the same as in England before that statute!