
    Merritt Dillard, administrator of Elizabeth Dillard, vs. William Wright et al.
    Where a married woman, by bill in chancery, claims property which once belonged to her husband, and alleges that her children and friends advanced the money for her to purchase the same at sheriffs’sale against her husband, and she dies before the decision of the suit, and the bill is revived in her husband’s name, as her administrator, the testimony of her children, who were alleged to have advanced the money for her, taken after her death, will not be competent without proof of the insolvency of her estate, they being interested as distributees thereof.
    
      Where a decree of the chancellor is predicated upon the facts proved in the case, and there is much conflict of testimony, and questions made as to the credibility of some of the witnesses, the high court of errors and appeals will not disturb the chancellor’s decree, even though it may be a matter of doubt whether the decree is certainly correct; the preponderance of evidence against the decree must be such as to, in analogy to a motion for new trial at law for like reasons, require the reversal of the decree.
    On appeal from the vice-chancery court at Holly Springs; Hon. Henry Dickinson, vice-chancellor.
    Merritt Dillard, and Elizabeth his wife, filed their bill March, 1844, stating that a negro boy, John, in May, 1839, had been sold under executions, as the property of Merritt; that the children and other relations of complainants had furnished money to one J. S.. Curtis, to buy said boy and convey him to complainant, Elizabeth, which was done; and that the bill of sale from Curtis was recorded. Complainants state that said negro was afterwards sold under an execution in favor of Morris & Morris, and bought by J. Jones and William Wright, with full knowledge that he belonged to Elizabeth. The Morrises and Jones &■ Wright were made defendants to the bill.
    The answer of Wright denies most of the allegations of the bill, and charges that the purchase made in 1839 by Curtis was fraudulent; that it was made with Merritt Dillard’s money, and that it was his property and subject to his debts, and, as such, was properly sold under the Morris execution; states that he gave full value for the boy, and that his purchase ought not to be set aside. Jones disclaimed any interest in the suit, stating that he had bought the negro as agent of Wright. On the 10th July, 1845, the death of Elizabeth Dillard was suggested, and the suit was afterwards revived in the name of Merritt Dillard, her administrator, &c.
    The record is a very voluminous one, consisting of depositions on both sides. Mary E. Carpenter, Elizabeth King, M. A. Thompson, Arabella Hubbard, were children of Mrs. Elizabeth Dillard ; their depositions were taken after their mother’s death, and fully sustained the allegations of the bill. There was other testimony, also, tending to the same end, that was competent. On the other hand, Gaston Dillard fully proved the fraudulent purchase by Mrs. Elizabeth Dillard with the money of her husband; and his testimony was partially corroborated. But the complainant took the testimony of William M. Dillard, A. W. King, H. J. Dillard, M. F. Smith, and others, to impeach the credibility of Gaston Dillard ; and the defendants took the testimony of sixteen witnesses to establish it. The vice-chancellor dismissed the bill, and the complainant appealed.
    
      Guion and Baine, for appellant,
    Insisted that the proof clearly established the fact, that the slave was purchased with the money of the children and relatives of Mrs. Dillard; that Gaston Dillard was unworthy of belief; and that the testimony of the distributees was competent in a suit where the administrator was a party.
    
      H. W. Walter, for defendant in error.
    The testimony of the distributees must be ruled out. This court has already affirmed this well known principle of law, “ that a distributee shall not be heard in court when his testimony would increase the fund of which he is to share.” If ruled out, then the decree of the vice-chancellor must be affirmed. There is nothing in the record to reverse it. If, however, the testimony of the distributees should be admitted, we submit that the decree of the court below must be affirmed, on the testimony of Gaston Dillard and the other witnesses for the defendants. This is a case depending alone upon proof.
   Mr. Justice Thacher

delivered the opinion of the court.

This bill was originally filed by Merritt Dillard and wife, who is since deceased, to recover a slave for the wife, alleged to have been purchased for her by her children and friends, at an execution sale of her husband’s property. The defence was, that the purchase money was not contributed and advanced by those children and friends, but was, in-fact, advanced by the husband, and that the transaction was fraudulent.

The testimony is very conflicting, and there is also some conflict as to the credibility of an important witness for the 'defence.

The testimony of the children of the wife must be excluded, since it was taken after her decease, and when, by law, her right to the property had vested in them. It should have been shown that the wife’s estate was insolvent, in order to have admitted their testimony. They were clearly interested as distributees of her estate.

The cause, therefore, assimilates itself somewhat to a motion for a new trial, because a verdict is alleged to have been found contrary to the evidence. But there is not presented such a clear preponderance of the evidence against the decree of the chancellor, as warrants the interference of this court; and although it may be a matter of doubt whether the decree is certainly correct, there is nothing that absolutely and imperatively demands its reversal.

The decree is affirmed.  