#### DANIEL GRIFFITH v. JOHN A. ROSEBOROUGH AND OTHO GILLESPIE.

The allotment of slaves, under a bequest to an executor, with power to derogate from her estate and allot them among certain persons, (testator’s children) is, in substance, but the performance of his duty, as executor, in assenting to and delivering over legacies, and need not be in writing.

Where an executor passed certain slaves to a legatee under a power to that effect, conferred by the will, and afterwards a written memorial was made as to some of the slaves, which was signed by the parties, it was Held not to conflict with such writing, to show the delivery of others of the slaves, by the executor, under the same authority, contained in the will, and to go into the whole history of the transaction.

This was an action of trover, for the conversion of a negro boy, named Stokes, tried before Osborne, J., at the Spring Term, 1860, of Yadkin Superior Court.

It was iu proof, that one Mark D. Armfield had been in possession of said slave, as his own property, from January, 1838, until June, 1856, when he sold and transferred him to Stephen L. Howell, B. Bailey and G. "Wilson, who held him in their possession until November, 1856, when they sold him at public sale to plaintiff, who took and kept possession of him until the conversion by the defendant, which took place, as was admitted, in April, 1858. The defendants insisted that tbe title was in Lucy Belt, the executrix of Thomas Belt, who died in 1828, and they introduced, in evidence, the last will and testament of' the said Thomas Belt, the material parts of which, are the following items: “ Item. I will and bequeath to my beloved wife, Lucy Belt, all my estate for the benefit of raising up and schooling and supporting of my children, and to distribute unto them, as their case may require, during her natural life or widowhood.” “ Item. I will and bequeath unto my seven daughters, Jerusha, Amelia, Polly, Elizabeth, Lamina, Emalineand Rebecca, each of them to have one negro girl, to be lotted off unto them, and each to have one horse and saddle, one bed and furniture, to be equally laid off and divided in equal value.” The will then proceeds to *521appoint Lncy Belt, the wife of 'the testator, and Thomas W. Belt, executrix and executor of said will.

The defendants also adduced in evidence the following receipt or certificate : “ This is to certify, that we have, individually, received of Thomas "W. Belt, executor, and Lucy Belt, executrix, of the last will and testament of Thomas Belt, deceased, at our marriage, one negro girl of equal value, one horse and saddle; one bed and furniture, which has been given to us by Lucy Belt, executrix, in accordance to that clause of the will of the said Thomas Belt, deceased, which says: I will and bequeath unto iny seven daughters, Jernsha, Amelia, Polly, Elizabeth, Lamina, Einaline and Eebecca, each ot them to have one negro girl, to be lotted off unto them, &c., and we take this occasion to say, that in receiving the above specified bequest for ourselves and our wives, are perfectly satisfied that the arrangement has been equal and satisfactory to ourselves. Given under our hands and teals, this the 2nd day of March, 1847. (Signed,)

F. K. Armstrong, [seal]

J. A. Roseborough, [seal] M. D. Armetelo, [seal] Orno Gillespie, [seal]

R. M. Rostsborougii, [seal]

R. M. Belt, [seal]

Amelia Belt, [seo2]

The defendants proved that the slave, Stokes, was the issue of a woman, Harriet, who belonged to Thomas Belt at his death, and that Mrs. Lucy Belt, the widow and executrix of Thomas Belt, had, after the intermarriage of her daughter, Elizabeth, with Mark I). Armfield, put her into their possession, and that Stokes was born four or five months before said marriage.

It was further shown, in evidence, that the receipt or certificate, above mentioned, was intended to apply to Harriet and other negro girls, which Mrs. Belt had put in possession of her daughters on their respective marriages, and which they continued to hold, or had disposed of, at the date of said *522receipt, and which negroes were distributed in compliance with the clause of the will, directing a negro girl to be given to each of his daughters.

The plaintiff then proved, by parol, that on said 2nd day of March, 1847, Mrs. Lucy Belt, with the purpose to divide a part of the slaves at that time in her possession, under the will of Thomas Belt, among her daughters, the legatees named therein, called them together at her house; and she and the executor, Dr. Thos. "W. Belt, appointed Dr. Gage, "William Holman and others, to value and divide said slaves. .Previous to the commissioners proceeding, the above recited receipt was given by the legatees, and the plaintiff proved that the negro girls given by Mrs. Belt to four of her daughters, on their respective marriages, had each a child at the time they were put into their possession, and that the woman, put into the possession of the defendant, Otho Gillespie, had two; that on the said 2nd of March, before any action by the commissioners, it was mutually agreed between the said Lucy Belt and Dr. Thomas W. Belt, the executrix and executor of the will of Thomas Belt, M. D. Armfield, the defendants, Gillespie, and Roseborough, and the other legatees under the said will; that M. D. Armfield and the other sons-in-law, should hold, as their own property, the child which each of them received with their negro woman, at the time'of their marriage, without valuation, and that the single daughters should, in like manner, receive a child, without being valued, to make the division equal among said daughters; that Gillespie, whose negro woman had two children at the time of his marriage, should retain the oldest child and return the other for valuation and division, all of which was done as agreed upon. The commissioners then proceed to list, value and allot the other slaves in the possession of Mrs. Belt, including the child returned by Gillespie, and reduced the same to writing, a copy of which is as follows :

“ Agreeable to a request of Mrs. Lucy Belt, we the undersigned met at her house on. the 2nd day of March, 1847, and *523proceeded to allot and set apart the following negroes to eight of her children, viz:

No. 2. To Thomas W. Belt, assigned Mary and her two children, valued at $500.

No. 6. To E. IL Armstrong, assigned Mariah and Ben, valued at $600.

No. 4. To Rebecca Belt, assigned Adaline, valued at $500.

No. 8. To Amelia Belt, assigned Washington and Mitchell, valued at $475.

No. 5. To M. D. Armfield, assigned Isaac and Alfred, val-ed at $575.

No. 7. To R. M. Roseborough, assigned Marshall and Smith, valued at $500.

No. 1. To Otho Gillespie, assigned Nelson, valued at $500.

No. 3. To J. A. Roseborough, assigned Caroline and El-Irck, valued at $550.

(Signed*) A. D. Gage,

David TIolman..

To this memorandum was attached the following receipt: “ Rec'eived 2nd of March, 1847, of Lucy Belt, executrix, lot of Negroes, No. 5, valued at five hundred and seventy-five dollars, having paid out of this amount $37.50 to R. Belt.

(Signed,) M. D. Armfield.”

This testimony was objected to by defendant, but admitted by the Court. Defendant excepted.

Yerdietfor plaintiff. Judgment and appeal by defendant.

Cflement and Mitchell, for the plaintiff.

Boy den, for the defendant.

Manly, J.

The only exception that appears on the record, sent from below, is to the admissibility of certain evidence on the part of the plaintiff, respecting the arrangements between the executors of Thomas Belt and the legatees* on the 2nd of March, 1847, touching certain children then in the possession' of the legatees.

*524The evidence, we understand, is objected to on two grounds : 1st, because it violates the rule that writing cannot be added to, or detracted from, by oral testimony. '2nd, because such a transfer of slaves cannot be effected except by writing.

The first objection seems to be based upon a mistake of facts. It appears that on the 2nd of March, 1847, there was, in the first place, a memorial made and executed of a past transaction, viz: a delivery to each of the legatees upon her marriage, a woman slave in pursuance of a certain bequest in the will. It was also agreed, at that time, 2nd of March, that the infant child which had gone with the mother into the possession of the legatees, should remain as a part of their respective allotments under the will. Having disposed of these preliminary matters, the executors and legatees, aided by the advice of a committee, appointed for that purpose, then proceeded to allot the slaves that remained on hand ; anti they reduced this to writing. It will be seen from this statement of the material facts connected with the exception-, that the children in question, constituted a special class, and were •disposed of upon a different basis from the other slaves. Although it was done on the same day,it was a distinct transaction, having no connection with, or dependance upon, the transactions witnessed by the writings. The objection to it, therefore, as an attempt to alter the purport of the writing, is inapplicable; Manning v. Jones, Busb. 368.

The other objection is equally untenable. The legatees were not deriving titl a from the executors, but from the testator through the executors. By adverting to the terms of the will, it will be seen that the executors were carrying into effect the provisions of the will, -and making distribution according thereto. The widow who was also executrix, has an estate in these negroes not absolute, but subject to the legacy to the daughters, with a power to say when she will derogate from her estate by allowing a distribution to them. The allotment, therefore, was but an assent to the legacies, and it has not been held, and we do not suppose it to be law, that such an assent, (an assent to a legacy for a slave) must be in wri*525ting. It is neither an executory agreement, gift or sale* within the meaning of the statutes, and consequently, need not be evidenced by any writing. The case of Reeves v. Edwards, 2 Jones’ Rep., 458,. is in point. We can perceive no- valid ground of objection to the evidence offered.and received-. The judgment, therefore,, should be affirmed.

Per Curiam,

Judgment affirmed.