
    Deer and Wife, et als. vs. Devin.
    
    in Virginia a parol gift of a slave, accompanied and followed by a perms-nent and continuing possession, is good, and vests the title in the donee. 6 Randolph’s Rep. 135.
    A limitation in remainder in the case of aparol gift of a slave is void, and the absolute title to vests in the.donee for life, to whom- po'ssessiotfis delivered. This is the law in Virginia and in Tennessee.
    On the 25th day of July, 1839, Gilbert Deer and wife Susan, (formerly Susan Devin,) William Devin, John Devin, David Nowlin and his wife, Elizabeth, (formerly Elizabeth Devin,) all residents of the county of Marshall and State of Tennessee, presented their bill to the honorable Edmund Dillahunty, one of the judges of the circuit courts, verified by the affidavits of David Nowlin, Gilbert Deer and John Devin, three of the complainants. The bill charged that complainants, together with Lucy Beck, who resides-in the State of Virginia, and for whom they file this bill as well as for themselves, are the legitimate children of Elizabeth Devin, and that Elizabeth Devin, their mother, was the legitimate daughter of Bryant W. Nowlin, deceased, who lived and died in the county of Pittsylvania, in the State of "Virginia; that Bryant W. Nowlin, their grand-father, m -the year made a will, in which was contained the following clause: “I lend to my daughter, Elizabeth Devin, a negro girl, named Hannah, and her increase, during her natural life, and at her death, my will and desire is, that said negro and her increase be equally divided, by lot or sale as may best suit, among the children of my daughter, Elizabeth Devin, which she now hath or may hereafter have lawfully begotten, to them and their heirs forever, which she agreed to take for her part of my estate forever;” that said B. W. Nowlin died in the year 1810, leaving the deed of 1806 as his last will and testament; that this will was proven and registered according to the laws of Virginia; that said Elizabeth Devin took possession of said property under the will, and continued to hold it, putting up no other claim except that of a life estate until recently; that she now claims to be the exclusive owner of said. Hannah and her children, amounting to fourteen in number; that she had sold one of the children of said Hannah, and appropriated the proceeds of the sale to her own benefit; that she declared she would sell the balance of them; that they were worth six thousand dollars. The bill insisted that, by virtue of the premises above set forth, they were entitled in remainder to the said Hannah and her increase, to take effect upon the death of Elizabeth Devin. The bill prayed that Elizabeth Devin, a resident of Marshall county, be made a party defendant to the bill, and that an attachment be is. sued, directed to the sheriff of Marshall, commanding him to take said negroes into his possession and to hold them subject to the final decree of the chancery court, unless said Elizabeth should enter into bond with approved security for their forthcoming to answer the decree, which should then be made in the premises. The bill further prayed that said Elizabeth be required to account for the value of the aforesaid slave by her sold, and for that purpose that a receiver be appointed, and that the other slaves mentioned should be hired out and the hire thereof be appropriated to the use and benefit of complainants until it should amount to the value of the slave so sold, to be kept and enjoyed by complainants paying' to said Elizabeth the lawful interest on the value as it , " i , n , , , , , fall due during her natural hie-.
    On the said 25th day of July, 1838, his honor judge Dilla-hunty issued his order to the clerk of the chancery court at Shelbyville, commanding him, upon the complainants giving bond with security by him to be approved, in the sum of eleven thousand four hundred dollars, to prosecute their bill, with effect, or. in case, of failure to. pay all costs, charges and damages consequent thereupon, to issue an attachment as prayed for in the bill of complainants. On the 27th, the complainants filed their bill in the. chancery court at Shelby-ville, Bedford county, giving .bond in conformity with the order of judge Dillahunty. The attachment was issued and executed, and defendant retained the negroes by executing bond in the sum of eleven thousand four hundred dollars with approved security, conditioned that she should not rer move the said property beyond the jurisdiction of the court, and that it should be forthcoming to abide, the final decree oí the chancery court.
    To this bill Elizabeth filed her answer on the 25th of Sepr tember, 1838.
    She admits that Susan Deer, Wm. Devin, Jno. Devin and Elizabeth Nowlin are her legitimate children, and that she was the daughter of Bryant W. Nowlin, who died in 1810 in the county of Pittsylvania in Virginia; that he made his will in 1806; that the clause inserted in the bill- from said will was correctly extracted; that his will was proven and registered in the said State and county; but denies that she took possession of said Hannah under said will,, or that she. had continued to hold her or her increase by virtue, of the said will, or that she had never claimed more than a life estate in the said slave and her increase. On the contrary thereof, she insisted that she derived her title to said slave by virtue of a parol gift from, her father in the year 1804,. previous to the execution of said will, and that the gift was without rer striction, condition, or limitation; that the possession was de^ livered to her at the time by her father, and had been continuous from the date of the gift till the filing of the bill; that her title was absolute: and that she had always claimed Han. nah and her increase as her absolute property.
    She alleged that in 1825, when she was about to leave the State of Virginia for the State of Tennessee, Richard Beck and his wife Lucy, for whose benefit with the others, this bill, as therein stated, was filed, instituted their suit in the county court of Pittsylvania county, in chancery, in which bill they allege the same matters now alleged in this bill, and attempted to have respondent enjoined from removing said negroes from the State of Virginia upon the ground that respondent had only a life estate therein; that in that suit respondent set up the same defence urged in this bill, to wit: that said slaves were the absolute property of respondent, by virtue of a gift made in the year 1804, and possession delivered in accordance therewith; that complainant, Beck, and wife, replied to the answer of respondent, and the cause came on for hearing on the 24th day of November, in the year 1826, upon the bill, answer, replication and proofs, and that the esparte. order previously made, restraining this respondent from removing the. said slaves from the State, of Virginia, was discharged and the. bill dismissed at the. cost of the said Beck and wife. She insisted that the. question involved in this suit was therefore adjudicated by a court of competent jurisdiction, and the rights of the parties, so far as W. C. Reck and wife and respondent were concerned, were settled conclusively. She admitted that Hannah had fourteen children since she came to her hands, and that she had possession of them all with the exception of one which she had sold' for the sum of three hundred and fifty dollars, and that she had appropriated the said sum, with the exception of forty dollars, to the pay-, ment of the debts of complainants, William, and John Devin and Gilbert Deer; that she had sold said slave with the full knowledge and acquiescence of complainants, so far as she bad ever heard-
    At November rules, 183.8, the complainants filed a general replication.
    The record from Virginia was filed on 28th September-, 1839, which sustained the allegations of the answer in re-t gard thereto, and much testimony was taken in th.e cause. At the August term, 1839, it was set for hearing by the de-Amongst a mass of contradictory and unsatisfactory testimony relating to so remote a transaction there are soms uncontroverted positions of fact.
    It appears that Bryant W. Nowlin made his will in 1806 and died in 1810; that he had, at his death, thirteen children, amongst whom was the defendant; that he was possessed of a tract of land and eleven negroes at his death; that one of his children had been provided for previously to the execution of the will; and that two years before the execution of the will, in the year 1804, the slave Hannah, at about the age of fifteen years, was delivered to defendant in full discharge of her claims against her father’s estate; that at the death of Bryant W. Nowlin the defendant set up no claim to any other portion of his estate, and it does not appear satisfactorily that she assented to its provisions or objected thereto; that the will was proven and registered in Pittsylvania county, Virginia; that the decedent directed, after payment of his debts, that his wife should hold his land (one hundred and fifteen acres) during her natural life, and that at her death it should be sold and the proceeds equally divided between eleven of his children, of which defendant was not one; and that when his youngest son should become of age, (in the year 1810,) the eleven slaves should be equally divided by lot or sale amongst the same eleven children, to be held by them and their heirs forever; that the defendant claimed and received nothing from her father or her father’s estate except the slave in question; that her possession of Hannah from 1804 had been continuous and unbrohen.
    In the lapse of thirty years the descendants of Bryant W. Nowlin scattered over the valley of the Mississippi in the States of Missouri, Tennessee and Mississippi, and they being the chief witnesses in regard to a family transaction, their testimony, collected from remote points, presents the most contradictory accounts of the facts. One of the sisters states that there was an absolute gift of the slave, whilst various other witnesses state that the defendant claimed only a life estate in the property till the period of 1825, when she attempted to remove them from Virginia, and her attempt was resisted and delayed by the complainant, Beck, and wife, by bill in chancery. It seems to have been the understanding of most of the children of Bryant W. Nowlin, from the year 1804, the date of the delivery of the possession, that the defendant had received the slave from her father as a gift during her natural life, limited, in remainder, to her children.
    The chancellor, Bramlett, being of opinion that the negro woman Hannah, and her children., were, by the last will and testament of Bryant W. Nowlin, loaned to the defendant during her life, and that the absolute title to the said slave, at the death of said E. Devin, was bequeathed 'to her legitimate children, decreed that complainants were entitled to them at the death of defendant; and believing that then* rights were endangered by the acts of the defendant, ordered that said Elizabeth Devin give a bond with good and sufficient security, in the sum of---dollars, to the clerk and master, conditioned that said Elizabeth have the said Hannah and her increase forthcoming at her death, to be divided equally amongst her legitimate children, in accordance with the provisions of the will of B. W. Nowlin, and in the event that said Elizabeth failed in the course of six weeks from the date of the decree to give such security, that the clerk and master should take the said negroes into his possession as receiver; that he should hire them out, pay the proceeds of their labor to the said defendant from time to time, as the same should be collected, and that she have the said slaves ready at the death of said E. Devin to be delivered to the complainants. The court further ordered that, in the event that defendant failed to give security, as required by the decree, she should deliver the said slave to the clerk and master upon his application for them. The court further ordered that she pay the costs of this suit.
    From this clecree the defendant prayed and obtained an appeal to the supreme court.
    
      E. J. Frierson, for the defendant.
    1. The defendant acquired a good title to the property in controversy by virtue of the statute of limitations. She held it from 1804 till 1810. There was no pretencé that she held it during this period by of a will, the contents oi which were not ¿mown even to his own children till his death. On this point the only controversy which can arise is as to the character of the possession. If the defendant took possession of the slave by virtue of a parol gift, and if a parol gift of a slave be void by th'e laws of Virginia, still it fixes the character of her possession, and establishes the fact that she held the slave as her own adverse to the claim of all others. The presumption of law is that she as donee held for herself. This presumption is not rebutted. The statute of limitations therefore divested Bryant W. Nowlin previous to his death of all interest in the slave, and the clause in his will impdsing a limitation upon the title of the defendant was void.
    2* If it be admitted that Bryant W. Nowlin made a parol gift of this slave, with limitation in remainder to children of defendant, to take effect after her death, what would be the effect of such a state of facts upon the rights of the parties? Whatever may be the laws of Virginia in regard to a parol gift of the entire and absolute interest in a slave, a gift by parol of a life estate would be good. A remainder created by parol is void, both by the laws of Virginia and of this State. What becomes of the remainder interest where the remainder is void and the life estate valid? Does it revert to the donor or grantor, or does it vest by operation of law on the owner of the life estate? It vests undoubtedly in the owner of the life estate. 10 Yer. 51L
    
      Nicholson, for the complainants,
    Coihmented upon the facts to show that the clause in the will limiting the right of the defendant in the slave to a life estate with a remainder to her legitimate children, was made in conformity with the views of the testator at the time he delivered the slave to his daughter, and that she received the slave with that understanding, kept possession of her with that understandings acquiesced in the provisions of the will, and at various and remote periods, during a series of years, declared that she held a life estate only. There was no gift previous to the will, but only a promise or agreement to give by will. The title of the defendant is derived from the will, and conse- . , , „ , n . quently the decree ox the chancellor is correct.
    The statute of limitations is not pléaded by the defendant and is not relied on in the answer and cannot now be set up”.
    
      Meigs, on the same side.
    There can be no presumption of a gift in this case deduced from the possession, because there is no clear evidence under what title the possession was taken and continued. If under the will, then the onus was on the defendant to show a gift by independent evidence, by evidence other than the mere fact of possession. In this case the proof stands in equilibris whether the possession was under the will or under a previous .gift, consequently a gift is not to be inferred from the possession, that being as consistent with the will as with the gift.
   Reese, J.

délive red the opinion of the court.

We have looked into this record with entire willingness to maintain, if we could, the decree of the chancellor; for if the expectations of the complainants to enjoy ultimately the property in dispute shall depend, not upon the will of their father, but upon the dying intestate of the defendant, Without alienation, their expectations however, from the ties of nature reasonable, may perhaps be disappointed. But in point of law, one thing is undeniable, namely, that in Virginia, a parol gift of a slave, accompanied and followed by a permanent and continuing possession, is good, and vests the title in the donee. See 6 Randolph’s Rep. 135. And whether we look into all the proof which the chancellor felt himself at liberty to do or not, one thing, as a matter of fact, is satisfactorily established, namely, that the father of the complainants and defendant gave to the defendant the negro girl Hannah, the mother of all the rest, in the year 1804, in full of all her future claims upon his estate. She was so i'eceiv-ed by her; possession was then delivered to her, and has continued with her ever since. This, by the law of Virginia, made the negro hers. There is no pretence that she gave back and delivered possession of the negro to her father. Of course, in 1806, when the will bears date, or at the time of his death, some years after, the testator had no interest in or disposing power and control over the negro in question. He devises in the will nothing but the negro to the defendant for life, with remainder to her children. So no question of election arose, and the executor of the will proves, both in the case in Virginia and in this State, affirmatively that the defendant claimed or received no distribution under the will. If we could look into the affidavits made by the complainants in the case in Virginia in maintenance of their own claims, which we are satisfied we cannot, still, the most they would establish would be that the parol gift of 1804 was to the defendant for life, with remainder to the complainants. And then by the law both of Virginia and Tennessee the limitation in remainder in the case of a parol gift of a slave must be held to be valid, and the absolute title would vest in the donee for life, to whom possession was delivered.

So we are of opinion that the decree must be reversed and the bill be dismissed, but without costs.  