
    Nancy Quine vs. James Quine et al.
    Where two persons commence living together, and planting in partnership, with nearly equal means; and the additions made to the capital stock by each not greatly disproportioned, and the partnership continues thus during a series of years, and until dissolved by the death of one of the partners, without any previous division of profits, each of the parties will be entitled to an equal share of the profits of the partnership; and to an equal share of all property purchased by either, whether real or personal, whether in their individual or joint names, during the existence of the partnership.
    Where two persons, planting in partnership, speak of making an agreement that the survivor shall take the whole property, such conversations will not be evidence that such an agreement was made ; and where, after the death of one of the parties, the survivor seeks letters of administration upon the property of the deceased, to which the right, by virtue of such survivorship is afterward claimed, it will be held an admission that no such right existed.
    On appeal from the decree of the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    ' Nancy Quine states in her bill, that in 1814, Henry Quine, then a youth, came to live with his brother, Robert Quine, her husband. That her husband died about this time, leaving no children, and his property was divided between her and his six brothers and sisters. That, on the division, she took as her half of the estate, one hundred and twenty acres of land and two small slaves ; and that the six heirs took the other half in stock and a negro woman. That Henry Quine had at this time no property, except his one-twelfth of her husband’s estate. That she entered into an equal partnership in the planting business in 1815, and assisted him to purchase from the other heirs their five-twelfths of her husband’s estate. That they continued living together, and planting together, with their joint means, for seven or eight years, until 1822 or 1823, when he left her and went into partnership with his brother-in-law, Mr. Bullock, with whom he remained one year.
    She states, that after remaining one year with his brother-in-law, he returned to her plantation, and that they then joined their property and services together, in the business of planting, under an agreement that they should enjoy their property together during life; that he should have the control of the property and crops; that she should render her services in her pr per department, and that on the death of either, the survivor should have the whole. She states that she brought into the concern her one hundred and twenty acres of land and two slaves, derived from her husband’s estate, and four other slaves, purchased by her,'and a legacy given her by her father’s will, of $1500 and a choice of horses. That he brought into the concern two small boys, derived from her father’s estate, the negro woman derived from her husband’s estate, and three slaves purchased by him. That they continued living together on her one hundred and twenty acres of land, and thus planting together, until 1828, when they purchased three hundred acres of land on Percy’s Creek, to which they removed, and on which they continued living and planting together until 1838, when they purchased five hundred acres of land, to which they removed and continued planting together until his death. That during this period they purchased twelve slaves, the title to which, as well as to said two tracts of land, was taken in his separate name, (except one slave, John, the title to whom was taken in their joint names,) but purchased with their joint funds, and employed in the planting business. ' That the three hundred acre tract was sold to Thompson, and his note for $4500 taken for the purchase-money ; and that she is now sued at law by the administrator of Henry Quine, for forty-one slaves, the $4500 note, for a stock of horses, mulesj cattle, &c., and one hundred and fifty bales of cotton. The bill prays that the actions at law be' enjoined, that the property be decreed to her under the agreement as survivor, or if she be not entitled to the whole as survivor, that an account of the partnership in their fourteen years’ planting be taken, and her interest in the partnership effects decreed to her, and that the legal title be held in trust for the purposes of the partnership. The administrator and heirs of Henry Quine were made defendants. Their answers admit the statements, that Henry and Nancy Quine commenced living together on her one hundred and twenty acres of land in 1822 or 1823, and united all their means in the planting business, but denies that she had then purchased the four additional slaves; admits the purchase of the two tracts of land, their removal to them, the purchase of the twelve slaves, and their continuing to live together with all this property, and to plant together until his death in 1838, but deny that this constitutes a partnership between them, except extending to a division of the annual proceeds of their planting business; denies that the lands and slaves were purchased by him with their joint funds; denies that there was such an express agreement as stated, and requires proof, and relies upon the statute of frauds against it. Alleges that they kept separate marks and brands for their stock; that they had their property separately assessed; that she claimed the household furniture as her separate property, and that she applied for letters of administration on Henry’s estate, and entered into an administration bond, which is made an exhibit.
    By the exhibits filed in the cause, it appears that neither Henry Quine, nor Nancy Quine, nor the father of Nancy Quine, could write, all of them signing their names by a cross, or their mark.
    The proof taken in the case was very voluminous; such portions of it as illustrate the opinion of the court will be briefly noted.
    John Mayes, from whom Henry Quine bought the three hundred acre tract stated, that at the time, Henry Quine, when he paid the purchase-money, stated to him that it was Nancy Quine’s money, and that the land was bought for her; “that they were living together, and making crops together at that time.”
    Walker, from whom Henry purchased the five hundred acres, stated that he paid him in part in two notes of Thompson, one for $4000, and the other for $400; which notes were for part of the purchase-money for the before mentioned three hundred acre tract which Henry sold to Thompson.
    Mary Sloan testified that when he brought home the title papers to the five hundred acre tract, he said to her that the land was bought for Nancy Quine. This was in 1838, not long before his death.
    Hugh B. Eschew proved that he stated to him, that the plantation on which they lived was purchased for Nancy Quine. This was a few days before his death.'
    James Conner proved that he said in 1838, that he should not have bought the land had it not been for Nancy Quine, and that he had bought it for her, and intended it for her.
    Thomas McDonald proved that in August, 1838, he told him the land on which he lived was bought for Nancy Quine. That he had bought a negro from Therrell, who asked him in what way he anc^Nancy Quine were living and working their property. That he did not like Therrell’s making such inquiries, and thought it meddlesome in him to be asking their manner of doing business; but he finally told Therrell they were in partnership, and that a bill of sale was made for the negro John, and sent in the name of Henry Quine and Nancy Quine. i
    John B. Therrell stated that when he sold him John, he, the. witness, inquired if he and Nancy were in partnership ; his reply was, that they owned the property together. Witness knows they worked their property together.
    Hannah Crow proved that she was acquainted with Nancy Quine thirty-seven, and Henry Quine twenty-seven or twenty-eight years. She knows they worked their negroes and property together as partners. '
    Nancy Barklay stated, that Henry Quine, in 1815, was worth nothing, and lived with Nancy Quine, after her husband’s death, until 1S22, when he went to live with Bullock, and after a year returned to Nancy Quine. That they continued to work their property together from the time he returned from Bullock’s, until his death. Negroes were purchased by them, she supposes from the proceeds of their crops.
    
      Richard Inman stated, that in 1838, Henry Quine mentioned that he and Nancy had six feather beds at home, and then went on to speak of the property they had made.
    Thomas Bell said, that there were cattle in separate marks, and Henry Quine said the greater part of the cattle belonged to Nancy Quine.
    Nancy Barklay said Henry and Nancy did claim separate property in negroes and stock. This was the case as to the stock after they removed to the Percy Creek plantation. Henry Quine claimed no part of the furniture in theJj^ftsfekáiLwas all claimed by Nancy Quine.
    Matthew Bryant said, that in 1838, Nan®' (¿lutne gave! be assessed, five slaves, and, he thinks, onwft^^ acres of land. Henry Quine gave in fit®? hundrec acres of land, and Mrs. Quine gave in a lis ing to both, while both were present.
    Stephen Johnson said, they gave in their propel in 1836 and 1837. In 1836, Mrs. Quine gave in one hundred and twenty-eight acres of land, and six black polls, over five and under sixty. Henry Quine gave in three hundred acres of land and twenty-eight slaves, and a town lot at Woodville, valued at $1000. In 1837 Nancy Quine gave in the same as before, and Henry Quine five hundred acres of land, thirty-one slaves, and the town lot, as before. Witness was acquainted with Henry and Nancy Quine for ten years and more, and knew that Henry attended to all the business transactions for both.
    Nancy Barklay further stated, that Henry Quine said Mrs. Quine had a good weaver in Zylpa, but that she would keep her in the field, and do the weaving herself; and that he did not labor himself as hard as Nancy Quine. That witness, in 1835, when Nancy Quine was sick, was sent for to visit her, and Nancy Quine called upon her to take notice, that if she died first it was her wish that Henry Quine should have all the property. And, at the same time, Henry Quine said, that if he died first it was his wish that Nancy should have all the property. That both spoke of it positively, as if that was the agreement, or understanding.
    
      Thomas Bell stated, that they lived together twenty-eight or twenty-nine years, upon the terms, as he understood from Henry Quine, that the longest liver was to have all the property, and that such was their agreement, as he understood from Henry Quine. That it was some years prior to the death of Henry, perhaps from five to eight years, when he heard him say, the survivor should have the property. He heard him mention it twice. •
    Richard Inman stated, that in 1828 Henry Quine slated to him that he and Nancy Quine had made property together, and that if he lived longest he was to have it all, and that if she lived longest she was to have it all. He said, that it was the understanding between them.
    Robert Watson states, that he had a conversation with Henry Quine the year he died. He stated, among other things, he had no doubt his relations would be glad if he was dead, but if he was dead his property would do them no good, as there was a bargain between him and Nancy Quine, that the longest liver should have all the property. He mentioned this bargain to witness several different limes.
    Hugh B. Eschew stated, that he was in company with Henry Quine a few days before his death. That Quine said he intended to go to Yirginia, and purchase some negroes to take to Texas. That he intended to leave all the property which he and Nancy had made together, here, and he had a young man picked out to live with Nancy, and attend to the business of the plantation. That the plantation was purchased for Nancy Quine. He had become dissatisfied, and wished to settle in Texas, but Nancy was satisfied to remain. He would go there with a few hands he expected to buy in Yirginia, and take nothing from the plantation.
    James Carnes stated, they worked their property together. Witness, in 1834, and again in 1838, applied to Henry Quine to borrow money. Both times Henry consulted Mrs. Quine before he would lend, and they agreed he should have it in both cases. Witness was satisfied there was a partnership between them, from their consultation before the money was loaned. They said, upon that occasion, we must let him have the money.
    Stephen Johnson states, that he knew Henry Quine attended to all the business transactions of both.
    There was other proof, not material to the case.
    On this state of pleadings and proof, the cause was submitted to the chancellor, who dismissed the bill, at the cost of Mrs. Quine, and she appealed.
    
      George Winchester, for appellant,
    contended,
    1. That by the nature of the connection between them, as well as by the nature of the agreement, there was a real partnership, inter se. On this point he reviewed the proof, and cited 3 Kent’s Com. (3d ed.) 35, 33; Musier v.' Trumpbour, 5 Wend. 274; Everett v. Chapman, 6 Conn. 347; Story on Part. 2, § 2; 20, § 16 ; 30, $ 24; 37, § 27; 41, § 27; 42, § 37; 93, §61; 114, §84; 115, §32; 121, §88; 126, § 91; 137, § 97; Willis v. Willis, 2 Atk. 71.
    2. That Mrs. Quine was entitled to the property, as surviving partner, he cited Story on Part. 23, § 18; 42, § 37; 121, § 88 ; Fenton v. Emblers, 3 Burr. 1278; Howard v. Priest, 5 Metcf. 582; Waugh v. Carver, 1 Smith’s Leading Cases, 616, n; 3 Kent’s Comm. 26.
    3. The agreement that the survivor should have the right to the property, was a valid one within the statute of frauds. Peter v. Compton, 1 Smith’s Leading Cases, 245; Skinner, 353. “An agreement that is not to be performed within the space of one year from the making thereof,” means, in the statute of frauds, an agreement which appears from its terms to be incapable of performance'within the year. Agreement by defendant to give plaintiff so many guineas on the day of his marriage. The marriage did not happen within a year. Held, by Holt, a good promise within the statute. Same doctrine in Salk. 280; Fran-cam v. Foster, Skinner, 356; Fenton v. Emblers, 3 Burr. 1281; 1 Bl. 333; Wells v. Horton, 4 Bingh. 40; Kent v.- Kent, 18 Pick. 569; Blake v. Cole, 22 lb. 97; Derby v. Phelps, 2 New Hamp. 515; Russell v. Blade, 12 Conñ. 455; Moore v. Fox, 
      10 Johns. 244; M’Lees v. Hale, 10 Wend. 426; Plimpton v. Curtiss, 15 Wend. 336.
    
      George H. Gordon, for appellees,
    contended,
    1. If any agreement as to the right of survivorship existed, it was null and void under the provisions of our statute to prevent frauds and perjuries. How. & Hutch. Dig. 370. He cited 2 Tent. 223; Chater v. Becket, 7 T. R. 201; Vanalstine v. Wemple, 5 Ców. 162; Chitty Cont. 208; Izod v. Middleton, 1 Dessaus. 116; Nelson v. Nelson, 1 Wash. 136.
    2. Courts of equity look with distrust on attempts by parol proofs of mere declarations to change the legal ownership of property, and establish resulting trusts; and that the proof in this case did not establish such a trust in favor of the appellant, he cited Nelson v. Nelson, 1 Wash. 136; Roberts on Frauds, 99, and authorities cited in note X; Digg v. Digg, 2 P. Williams, 415; 2 Saund. Uses and Trusts, 323, 324; Kirk v. Webb, Prec. in Ch. 84; 2 Sto. Eq. 444; Rob. on Fraud, 3d Am. ed. 95, and note 39; 1 J. J. Marsh. 3; Snelling v. Atterback, 1 Bibb, 609; Bottsford v. Burr, 2 Johns. Ch. R. 405; 2 Fonb. Eq. 41, 3d Am. ed.; Slocum v. Marshall, 2 W. C. C. R. 398; Fank v. Haughtier, 3 A. K. Marsh. 57; 2 Am. Eq. Dig. 477, § 42.
    3. That the proof failed to establish a partnership between Henry and Nancy Quine, he cited Collyer on Part. 2, 12, 13; 9 J. R. 495; 3 Kent’s Comm. 23; Coope v. Eyre, 1 H. Black. 37; Grace v. Smith, 2 Black. R. 998; Morse v. Wilson, 4 T. R. 353 ; 6 Pick. 372; Hesketh v. Blanchard, 4 East, 144; Hoar v. Dawes, Doug. 371; 1 Camp. N. P. 329, n; Gallop v. Newman, 7 Pick. 284; Chandler v. Brainard, 14 Pick. 285 ; Turner v. Bissell, lb. 192; Rice v. Austin, 17 Mass. 206 ; Betts Sup. Yes. 205-209.
   Mr. Justice Thacher

delivered the opinion of the court.

This is. an appeal from a decree of the superior court of -chancery, dismissing the complainant’s bill in that court.

The complainant, Nancy Quine, claims the whole estate. real and personal, comprising the plantation, with its slaves, stock, &c., upon which Henry Quine resided with her at the time of his death; or, at all events, the one half of the property purchased by said Henry Quine, during his lifetime. The bill of complainant likewise prayed for injunctions to restrain further action in suits at law instituted by the administrator and heirs at law of said Henry Quine, to recover the real and personal property of the said plantation.

These claims of the complainant are based upon a copartnership in the business of planting, which is alleged to have subsisted between the said Nancy and Henry, from the year 1815, with the intermission of a year, up to the year 1838, at which time the said Henry died, coupled with an alleged contract, that the survivor should possess the whole property.

On the other hand, the defendants deny that any such co-partnership ever existed, or, at most, that it extended only to a division of the annual proceeds of the plantation cultivated by said Henry and Nancy; and they deny that any such contract of survivorship ever existed, and moreover insist that if ever any such contract was made, it was void under the statute of frauds.

Previously to the death of Robert, the husband of Nancy Quine, Henry, his brother, had been living with him in the joint cultivation of his plantation. After the death of Robert, Henry continued to cultivate the plantation with the said Nancy until about the year 1821, when he removed to the plantation of one Bullock, with whom he remained for the space of a year, and then returned to the land upon which said Nancy lived. During the period of time before the removal of Henry to said Bullock’s plantation, Nancy contributed towards their joint business one hundred and twenty acres of land, upon which they lived, and two slaves, not over ten years of age, and Henry owned and used in the business, one grown slave and her child. The parties continued to live upon the land of Nancy Quine until about the year 1828, when a tract of land comprising three hundred acres, was purchased' in the name of Henry Quine, to which the parties removed, and there continued to live together as before. This tract of land was subsequently sold, and the said Henry purchased another tract of land, consisting of five hundred and fifty acres, to which they removed, and there continued to reside as before, until the death of said Henry, in 1838.

The parties continued to live together for a space of about fourteen years, and to carry on ihe business of planting upon the three several tracts of land, as before mentioned, employing their several slaves, stock, &c., without there appearing to have been made at any time any definite settlement or division of the proceeds or profits of their labors. And during this period, each pa.rty brought into the business slaves and other property, which are identified as having been derived from other sources than from the profits of the business.

In respect to the evidence adduced, — while there is some reason to excite the probable belief that the parties preserved a division of the property and of the proceeds of their separate labors, — as from the circumstances that the titles to the real estate purchased on two occasions during the time of their dwelling together were executed to Henry individually — their slaves separately given in to the assessor of taxes for assessment, and the stock upon their plantation distinguished by their separate marks, — there is much likewise to establish the opinion that an equal co-partnership in the property purchased by either or both of them, during that time, existed between them — as from the circumstances that they united their property, means, time and labor, from first to last, in the same and no other business or undertaking; from the declarations of Henry at the time of the purchase of the three hundred acre tract of land, that it was purchased for the benefit of Nancy; his declaration, not long before his death, of a design to surrender and abandon the whole plantation to Nancy, and to remove himself to Texas, to which state Nancy’ was also said to be unwilling to accompany him; and his unwillingness to loan money to an applicant for it, except upon a consultation with her, and her approbation.

While these parties commenced their engagement of living and planting in common, with means not very unequal, and while the means added by either subsequently, not derived from the proceeds of the plantation, were not greatly dispropor-tioned, the conclusion of the engagement, by the death of Henry, leaves, if the view of the defendants is to be indulged, the complainant with a very inadequate remuneration and increase for the investment of her property and labor for fourteen years in what was avowedly a prosperous and lucrative business, and heaps upon the representatives of Henry an amount of profit and increase strikingly disproportioned to his investment. This palpable disproportion in the result to the two parties employed in the same business, who must have been equally affected during its continuance by the same good or ill fortune, seems to show unequivocally that the apparent greater success and wealth of the one must have been derived, to some extent, out of the means and toil of the other.

Under all the circumstances of this peculiar and interesting case, it seems to be most conformable to true principles of equity to hold, (and the circumstances seem amply to warrant it,) that there did exist, from the period of the re-union of Nancy and Henry, after his return from Bullock’s plantation, a voluntary and mutual contract to put their land, slaves, stock, labor and skill, &c., into the business of planting, which contract necessarily carried with it a communion of profits, because of the community of stock between them in the labor of the plantation. This constitutes such a copartnership as would entitle Nancy to an equal share of the property, real and personal, purchased by Henry while they were, living and planting together under the contract.

But in regard to the alleged contract that the survivor of the copartnership should take and possess the whole property, that seems from the evidence to have been merely a matter of conversation between them, evincing an intention to make such a contract, and not that such a contract had been positively and definitely agreed upon and made. It was more a matter of contemplation than actual determination. This view of the alleged contract of survivorship is to a great extent confirmed by the circumstance that Nancy sought letters of administration upon the estate of Henry, thereby confessing her own opinion of what was to be the descent of the share which Henry had, in his lifetime, in‘the copartnership estate.

The decree of the chancellor is therefore reversed, the bill and injunction directed to be reinstated, and an account to be taken in accordance with the principles of this opinion and decision.  