
    ALEXANDER GILREATH by his guardian, against NOAH GILREATH.
    A child is allowed to uso fair argument and persuasion to induce a parent to make a will or a deed in liis favor.
    Cause removed from the Court of Equity of Wilkes county.
    Alexander Gilreath, the plaintiff, in December, 1846, made a deed of gift of several slaves and other property, to the defendant, Noah Gilreath. The said Noah was the youngest son of nine children, and in 1822, on arriving at the age of twenty, all the other children, but two daughters, having left their father’s house, the defendant remained with him and assisted upon his farm and in his other business. The father was 96 years old when he died in 1852, and np to that time the defendant remained with him. From the time the defendant came of age the plaintiff was not able to labor, and the support of the family, which consisted of the father and his wife and two -daughters, with two slaves, a man and a boy, devolved mainly on him.
    After a few years Noah married, and his family increased rapidly and became numerous. Shortly after his marriage, he built a house near his father’s, and the two families lived in common. When the defendant’s children got old enough they were put to work on the farm. During the time elapsing between his arriving at age and the making of the deed of gift, the plaintiff bought a female slave, who had children very fast; these, as they grew up, with the two slaves above mentioned, and defendant’s children, under his superintendence and active assistance, during the whole period aforesaid, on a small tract of inferior land, made a comfortable living, which was used by the two families indiscriminately. A mill, a black, smith shop, an orchard and a pension of about $35, which the-plaintiff received for military services in the war of the revolution, brought in from time to time some funds, which were laid out and used for the common support and maintenance of these families, and most generally laid out by the defendant, but no account was kept of these receipts and expenditures. After a few years, the two sisters got married and left the family, the mother became frail and helpless, and the defendant’s family waited on her ; they were also kind and attentive to the old man, and much affection was manifested by him for all the defendant’s family. In July, 1847, the plaintiff sold a negro girl, who liad become refractory, for the sum of $525, which went into the hands of the defendant. In the year 18 — , an inquisition, as to the state of the plaintiff’s intellect, was ordered by the county court of Wilkes ; and upon tho report of a jury that he was of nonsane memory, a guardian was appointed, who instituted this suit in the name of his ward, the plaintiff.
    The bill alleges that the deed of gift above mentioned, was obtained by fraud and undue influence, and the prayer is that the. same may be set aside, and the defendant surrender the slaves and other property, and account for the profits of the same during the time he had the use and management of his father’s concerns; also, that he account for the proceeds of the farm, the mill and blacksmith shop.
    The defendant answered, alleging the facts as above set out in the case, denying all fraud and undue influence in obtaining the deed of gift from his father, but insisting that it. was the free gift of his father, as was the money raised by the sale-of the slave, and was by no means an adequate compensation for all the toil and service rendered to his father and family, lie. insists that it was never expected of him to keep an account, and he therefore kep.t none, and is totally unable to give a statement of the receipts and disbursements of the small sums that came to his hands during the long time he resided on the plantation, and conducted the businesss of his father.
    There were replication to the answer, commissions and proofs, and the cause being set down for hearing, was sent to this Court.
    
      Boy den, for the plaintiff.
    
      Mitchell and Jones, fox- the defendant.
   Ejsarson, J.

After a full examination of the pleadings and proofs, we are of opinion that the allegations that the deed of gift mentioned in the pleadings, dated 4th of December, 1846, was executed by Alexander Gilreath at a time when he had not sufficient mental capacity, and that its execution was procured by fraud and undue influence, are not proved. The deposition of William Ivlasten, one of the subscribing witness-* es,. who is admitted to be a man of intelligence and respectability, clearly establishes the mental capacity of the donor, at the time the deed was executed. The deposition of James Calloway, the other subsci’ibing witness, also establishes the mentid capacity. It is true he states some circumstances tending to show weakness of mind and loss of ii.emoiy, and expresses the opinion that the donor had so far lost the force of his intellect as to be easily made the subject of imposition, but he was not present at the execution of the deed, and did not see the donor, until five or six weeks afterwards, and in the whole mass of testimony, there is nothing tending to show that the defendant did any thing more to procure the execution of the deed, than was consistent with law and good conscience. A child is allowed to us efair argument and persuasion to induce a parent to make a will or deed in his favor.

We are also, of opinion, that the allegation that the defendant acted as the guardian of his father, or undertook the management of his affairs, or a general agency in respect thereto, whereby he became bound to keep an account of the money, produce, &c., that was at various times received by him, or passed through his hands, is not proved. On the contrary, we are satisfied, from the pleadings and proofs, that he did not undertake to keep an account, and that what was made on the farm, and by the mill and blacksmith shop, and the money that was from time to time received on account of the pension or otherwise, was used by the father and son and their families as an indiscriminate fund for their support and maintenance, without any agreement, or expectation that an account would ever be called for, or could be made out, with the exception of the sum of $525, the price of a negro girl sold by the father, which amount the defendant admits came into his hands. In reference to this sum, the agreement and understanding above referred to, did not apply, so as to make it fall into the fund which was to be used indiscriminately for their jnutual support. Indeed, this is not alleged by the defendant, and he seeks to avoid a liability to account for it, by averring that his father made a gift of the money to him. But he fails to prove this averment, and we are satisfied from the circumstances, and the relation of the parties, it being in July, 1847, when, according to the weight of the evidence the old man had, failed very rapidly in mind and body, so as to be nearly helpless, that the defendant received this sum in trust, and with, the understanding that he should account therefor.

' ■ The plaintiffs are entitled to a decree for this amount $525 with interest from the first day of July, 184†.

Per Curiam. Decree accordingly.  