
    
      Patterson v. Franklin.
    December, 1836,
    Richmond.
    Gift of Slave — Effect as to Children Born before Gift Takes Effect.* — By deed of gift, attested by two witnesses and duly recorded, the donor, at his own and his wife’s death, gives to his son a negro woman slave. The woman afterwards, in the lifetime of the donor, has children. Held, the children born before the period at which the donee was to have the mother, do not pass to the donee.
    In 1820, William Franklin brought an action of detinue in the superiour court of law for Campbell county, against William Patterson, to recover certain slaves. Issue was joined on the plea of non detinet. Upon the trial of the cause, a bill of exceptions was filed, which stated that the plaintiff claimed the slaves in the declaration mentioned, as a gift from Edmund Franklin, under a deed in the following1 words: “Know all men by these presents that I Edmund Franklin of the county of Campbell, for and in consideration of the natural love and affection which I bear to my son William Franklin, and for and in consideration of one dollar to me in hand paid by the said William Franklin, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, at mine and my wife’s death do give and grant, and by these presents do give and grant, unto the said William Franklin, his executors, administrators and assigns, one negro girl named Sarah; to have and to hold the said negro girl Sarah to him the said William Franklin, his executors, administrators and assigns forever. And the said Edmund Franklin, for himself, his executors and administrators, the said negro girl Sarah unto the said William Franklin, his executors, administrators and assigns, against the claim of him the said Edmund Franklin, his executors and administrators, and against the claim or claims of all and every person or persons whatsoever, shall *and will warrant and forever defend by these presents. In witness whereof, I have hereunto set my hand and seal this fourteenth July' 1801.
    Signed, sealed and )... . „ , ,. r„ , ^ delivered in VEdmund Franldm, [Seal. J presence of us, )
    John Franklin, Polly Franklin, William Sims.”
    Which deed was proved by two of the attesting witnesses, and admitted to record in the court of Campbell county on the 11th of January 1802. The defendant claimed as a purchaser at a sheriff’s sale under an execution which issued in the year 1811 against the goods and chattels of Edmund Franklin the donor, in whose possession the slave Sarah had remained from the date of the deed of gift to the time of the sale aforesaid. After proving his purchase at the sheriff’s sale aforesaid, the defendant introduced a witness, who proved that several of the children of Sarah, in the declaration mentioned, were born in the lifetime of Edmund Franklin the donor; and thereupon the defendant moved the court to instruct the jury, that the plaintiff was not entitled to recover, under the deed aforesaid, the children of Sarah born in the lifetime of Edmund Franklin, subsequent to the date of the deed and before suit was brought: which instruction the court refused to give, and instead thereof instructed the jury that the plaintiff had a right to recover all the children of Sarah, whether born before or after the death of Edmund Franklin. To which opinion of the court the defendant excepted. The jury found a verdict for the plaintiff, upon which judgment was rendered; and to that judgment a supersedeas was awarded.
    Johnson, for plaintiff in error.
    Robertson and Mayo, for defendant in error.
    
      
      Slaves — Gift.—The principal case is cited in footnote to Barker v. Barker, 2 Gratt. 344; Poindexter v. Davis, 6 Gratt. 502, 503. 508; Dickeschied v. Exchange Bank, 28 W. Va. 367. See monographic note on “Gifts” appended to Barker v. Barker, 2 Gratt. 344.
    
   BROOKE, J.

This case turns on the true construction of the deed in the record from Edmund Franklin. The *'consideration in the deed is love and affection, and one dollar; the operative words are — “At mine and my wife’s death I do give and grant unto, the said William Franklin, his executors, administrators and assigns, one negro girl named Sarah; to have and to hold,” &c. This grant, though irrevocable by the grantor, is testamentary in its character; the grantee takes nothing until the death of the grantor and his wife: and though nothing is said of increase, it is contended that under the rule partus sequitur ventrem, the increase passed to the grantee. That rule, by the civil law, was only applicable to the increase of animals, and is the rule of the common law by adoption, but has no application to slaves. The rule in this respect of the civil law, adopted by our statutes, is that the increase shall follow the condition of the mother, and can seldom have any application where the question is a question of property, and not a question of liberty as in the case of Maria &c. v. Surbaugh, 2 Rand. 228. It would apply' in a case in which the act of limitations applied to the claim to the mother, and the length of time was not enough to bar the right to the increase. It applies also (where nothing is said of increase in the will or deed) to the case where the grant or devise is of a life estate to one, remainder over to another. But in most cases, whether increase passes or not, depends on the construction of the deed or will. The case Before us, then, depends entirely on the construction of the grant. That is silent as to issue, and the relation in which the parties stood to each other forbids the inference that increase was intended to be included in the grant. The death of the grantor and his wife might be very remote, and unless increase had been expressly included in the grant, we cannot presume that the grantor intended to grant what in prospect might be of much greater value than the slave granted. It may be said (and it has some weight) that at the death of the grantor and his wife, Sarah *might be dead or too old for service; but against this it may be said that if increase is to pass, it might, after great expense in rearing it, be of ten times the value of the girl expressly granted. Upon the whole, I think the judgment must be reversed.

The judgment of this court was, that the judgment of the superiour court be reversed with costs, the verdict set aside, and the cause remanded for a new trial, on which the jury were to be instructed, if such instruction should,be asked, that the deed set forth in the record had not the effect of passing the title of Edmund Franklin to the issue of Sarah born before the period at which William Franklin was by the deed to have title to the mother, and that they did not pass to him with the mother by accession.  