
    
      Thomas Crawford vs. John M'Elvy.
    
    1. Trover for two slaves. Plaintiff’s title depended on an instrument to the following effect. The original owner of the property in dispute, in consideration that plaintiff would support her for life, executed an agreement, whereby she declared that she did “ make over unto the said T. P., his heirs and assigns, all her right and title to a certain negro woman (by name) and her child, notwithstanding the said woman and child is still to be under her power, that is to say, the said M. P., during her life time, but at her decease to be the property of T. P.”
    2. It was held, that this instrument could not operate as a contract, because the consideration to be performed on the part of plaintiff was a condition precedent to any thing to be done by the other party, and with which he had not complied; nor as a deed of conveyance. As a mere contract to make a ’will in plaintiff’s favor, it could have no effect.
    3. Held, also, that as a testamentary paper, it was void, having but a single witness.
    4. It having been proved that the original owner of the slaves in dispute had lived with the defendant fifteen or twenty years, and had frequently declared that she intended the slaves for him as a compensation for his care of her, it was held, that a letter addressed to him subsequent to the alleged com veyance to plaintiff, declaring “ all she had was for him at her death, as a compensation for taking care of her,” was admissible in evidence, the letter and the antecedent declarations of the same purport constituting his supposed title.
    
      5. As defendant claimed to be a creditor of the original owner of the slaves, for care and support, beyond the whole value of her estate, and as the letter addressed to him acknowledged that, by saying that all she had was for him at her death, as a compensation for taking care of her, it was in this point of view admissible in evidence. Although defendant’s claim could not prevail on either ground, because, as administrator of the former owner of the slaves, he could not object to the deed to T. P., on account of its being a fraud upon her creditors, yet the proof was still admissible.
    
      Before O’Neall,' J., Chester, Fall Term, 1842.
    This was an action of trover for two negroes, Lilly and James. The case may be stated as follows. A Mr. Phillips was the owner of Lilly ; he died insane, upwards of twenty years ago, leaving his widow, Margaret, crippled, from blows inflicted upon her by him during his insanity. He left no property, except the woman Lilly, and his watch. His widow had undisturbed possession of the whole till her death. For 15 or 20 years she lived at the house of the defendant, whose wife was her cousin. For several years of that time, she had to be lifted by two persons from tier bed to the fire. The woman Lilly was diseased and unserviceable — generally a charge. For taking care of the old lady, it was abundantly proved that $100 per year was a very moderate charge. After some years, the woman Lilly had the child James, who is now about 8 or 10 years of age; he was raised by the defendant. The old woman w;as a well educated Irish lady, but knew nothing about business. She frequently declared that she intended her husband’s watch for Mr. Kilpatrick, and the balance of what she had, she intended the defendant, at her death, to have it as a slight compensation for his care of her. In ’35, she left the defendant’s and went to Thomas Phillips, a brother of her husband, living in Fairfield or Richland. Soon after going there, on the 26th of June, 1835, in consideration that Thomas Phillips would support the said Margaret for life, she and he executed an agreement, whereby she declared that she did “ make over unto the said Thomas Phillips, his heirs and assigns, all her right and title to a certain negro woman, Lilly, and her child, notwithstanding the said woman and child is still to be under her power, that is to say, the said Margaret Phillips, during her life time, but at her decease to be the property of Thomas Phillips.” Thomas Phillips never, in any shape, complied with the consideration, his part of the agreement. He did not support her during her life ; he was proved to be unable to do so. On the 28th of September, she got Mrs. Telford to write to the defendant, begging him to come for her, and repeating to him, “ all she had was for him at her death, as a compensation for taking care of her.” She went to Wm. Telford’s the last of October, ’35, and lived there till 11th January, 1836. Thomas Phillips refused to pay her burial expenses. On the 7th Septembei*, 1835, Mr. Thomas Mitchell proved that he and a Mr. Craig saw Mrs. Phillips execute to Thomas Phillips a release of her life estate in the negroes. This paper, he said, was read to her, and understood by her. I think he and Craig both made their marks. He was examined by commission, in Georgia. Craig was unaccounted for. He, Mitchell, said Thomas Phillips applied to him to come and see the paper executed, and asked him to get some suitable person to witness it with him. He got Craig. Mrs. Phillips’s signature purported to be by a mark, and if made by a woman of 80 years of age, as she was proved to be, it bore none of the intrinsic evidences of such a fact. Mrs. Telford said, in her examination, that Mitchell was a man of bad character. Thomas Phillips sold the negroes to Kennedy, and went off to New York; they were a short time in the possession of each. Kennedy, in November, ’36, sold to Samuel F. Rice, and he, "for valuable consideration,” assigned his bill of sale to the plaintiff. The negroes, about the death of Mrs. Phillips, a little before, or a little after, went into the possession of the defendant. He administered on the estate of Mrs. Phillips, and on the 30th of September, 1837, sold and purchased the negroes for $350, which was proved to be their full value.
    The jury were told that to entitle the plaintiff to recover, two things must concur, right of property and conversion. If the plaintiff had the right of property, the conversion was established, and hence it was only necessary to look to .the question of property. The plaintiff’s title depended upon two papers derived from Margaret Phillips, who, for the purposes of this case, must be regarded as the original owner.
    1st. The agreement to maintain her during life, in consideration of which she conveyed the negroes to Thomas Phillips at her death. There were, in the opinion of the Court, two fatal objections to that; one, that he did not perform his part in her maintenance during life; the second, that it undertook to convey an estate in personalty at her death, which, according to Vernon vs. Inabinet, Boulter and Ragsdale, Pitts vs. Mangum, was not good.
    2d. The quit claim oivrelease of her life estate. The validity of that depended upon the inquiry, whether, in fact, it was executed by her. It bears date on the 7th of September; on the 28th, she wrote to M’Elvy, as if she 1 id no knowledge of it. The jury were, however, told that Mitchell had fully proved the fact of execution, and if he was to be believed, it ought to prevail. They were referred to Telford’s account of him, that he was a man of no character. They were told that they might look at the singular mark, purporting to be her signature, and it might, in a case of doubt, be a straw in the balance, to determine whether it was genuine or not.
    The defendant had contended, that even if the quit claim or release was the deed of his intestate, still that, as it was voluntary, and as he was her creditor for her maintenance, it would be fraudulent and inoperative as to him. The presiding Judge thought, and so directed the jury, that the defendant, according to Chappell vs. Brown, could not make such an objection.
    The facts were fairly submitted to the jury. Verdict for the defendant.
    Plaintiff moved the Court of Appeals for a new trial in this case, on the following grounds :
    1. Because the court permitted a letter, written by the direction of Margaret Phillips to the defendanl, after her conveyance of the slaves to Thomas Phillips, under whom plaintiff claims, to be given in evidence to defeat plaintiff’s title.
    2. Because the court decided, and so charged the jury, that the deed of the 26th June, 1835, was wholly inoperative, and that Thomas Phillips, and those claiming under him, took nothing under that deed.
    3. Because the court charged the jury upon the matter of fact, that he did not think it possible an old woman such as Margaret Phillips, could have made the strong zigzag mark at her name subscribed to the quit claim of the 7th September, 1835, and that the jury might, upon inspection, pronounce it a forgery, in direct opposition to the testimony of the subscribing witness, and other testimony in the case.
    4. Because the laches of the defendant was a fraud upon the plaintiff, and those under whom he claims, particularly Samuel F. Rice and Samuel W. Kennedy.
    5. Because the court, in his charge to the jury, stated that the negroes went into possession of defendant in 1836, in which particular the jury were misdirected upon the matter of fact.
    
      6. Because the court permitted defendant to give in evidence a claim against Margaret Phillips, for her board and maintenance, standing back about twenty years, or upwards, before her death, by which the jury was improperly biased, and drawn off from the proper issue between the parties,
    7. Because the plaintiff established a clear and unquestionable title in himself to the slaves in dispute, by direct and positive testimony, and the jury could not, consistently with law and the evidence, find a verdict for the defendant.
    Clark, for the motion,
    cited, on the second ground, 4 M’Cord, 198, 1 Bailey, 144.
    JL. W. Thomson, contra,
    cited 2 Brev. Rep. 411.
   Curia, per

O’Neall, J.

It is only thought necessary to discuss two out of the defendant’s seven grounds; the remaining five are regarded as sufficiently answered by the report, or as being mere matters of fact, which went fairly to the jury, and have been by them decided.

The first ground is that which objects to the charge, because it ruled that the deed of 26th of June, 1835, was wholly inoperative. That paper is very improperly considered as a deed for the transmission of property. It is, more properly speaking, a covenant, by which Thomas Phillips covenants to build a house for Margaret Phillips, and to supply her with good and sufficient clothing of every kind that she may stand in need of, or require, during her life time. In consideration whereof the said Margaret Phillips doth hereby make over unto the said Thomas Phillips, his heirs and.assigns, all her right and title to a certain negro woman, named Lilly, and her male child, named James, between the age of two and three years; notwithstanding the said negro woman and child is still to be under her power (that is to say, the_said Margaret Phil-, lips,) during her life time, but at her decease to be the pro-, perty of the said Thomas Phillips, or his heirs, and to be the property of no other person or persons whomsoever. Likewise, also, what other little personal property I, the said Margaret Phillips, may be possessed of at my decease, shall descend to the said Thomas Phillips and his heirs, and to no other person whomsoever.”

The objections to the operation of that paper, suggested on the circuit, still remain. It is a mere contract, that at the death of Mrs. Phillips the property mentioned in it is to belong to Thomas Phillips. It cannot operate as a valid subsisting contract, by which Mrs. Phillips would be bound, because the consideration to be performed, on the part of Thomas Phillips, was precedent to any thing .to be done on her part. In consideration of building the house, and furnishing food and clothing during her life, she agreed that at her death he should have the property. He did not do the acts constituting the consideration. Therefore he cannot demand the enforcement of the paper as a contract.

It cannot operate as a deed conveying the property; for by it no present interest passes. The case of Vernon vs. Inabnet, 2d Brev. Rep. 411, would be enough for that point. But it is not necessary to rest this case upon that ground ; for, reading the whole paper, it is manifest that it was a mere contract to make a will in Thomas Phillips’s favor, and in that point of view it cannot have effect. .

It cannot, however, in any point of view, claim any higher rank than a paper to take effect at Mrs. Phillips’s death. That makes it testamentary, and having but a single witness to its execution, it is void as a will. The case of Bowker vs. Ragsdale, cited in Pitts vs. Mangum, 2d Bail. 588, sufficiently demonstrates that the paper before us is merely testamentary ; for the provisions' here, as to the future character of the estate, and that it was altogether to take effect at Mrs. Phillips’s death, are a great deal less equivocal than they were there. On this point, I take great pleasure in referring to the analagous case of Welch vs. Kinard, just decided in the Court of Appeals in Equity, for an elaborate consideration of the matter, shewing that a deed, in all its formal parts, was, from the disposition of the property, to take effect at the donor’s death, ruled to be testamentary.

The agreement of 26th June, 1835, being thus disposed of, it only remains to enquire whether the letter from Mrs. Phillips to the defendant, dated 28th September, and in which she-declared “all she had was for him at her death, as a compensation for taking care of her,” was admissible evidence. I think it clearly was, in either of two points of view.- The defendant contended, 1st, that she had given these' slaves to him ; the letter, as well as antecedent declarations to the same effect, were his supposed title. That they were inoperative was most manifest. Still, he had the right to adduce the evidence, in order to have upon it the judgment of the court. 2d. He claimed that he was a creditor of Margaret Phillips, for his care and support of her, to more than the whole value of her estate. This letter acknowledged that, by saying that all she had was for him at her death, as a compensation for taking care of her. It is true that neither this nor the former claim could prevail; for the defendant, as her administrator, could not object to the deed to Thomas Phillips, on account of its being a fraud on her creditors, and the jury were so instructed ; still the proof was admissible, so as to make the case on which my judgment was demanded, and on which my charge was predicated.

The motion is dismissed.

Richardson, Evans, Butler and Wardlaw, JJ. concurred. 
      
       Spear’s Equity, 256.
     