
    Elias Horry and Rev. Paul Trapier, Trustees of Mary A. and James F. Heyward, vs. Dr. Jos. Glover, Mrs. E. Glover and John Fraser, Executors of J. Heyward Glover, deceased, and others.
    Heard before Chancellor Harper, Colleton District, May Term, 1836.
    Daniel Heyward, by his will, dated in 1778, gave to his brother Thomas, in trust for Ins (testator’s) wife, for life, his plantation, known by the name of Springfield, together with all the negroes, plantation utensils, stock of cattle, hogs, and sheep ; also, tweuty head of cows and calves, from his plantation called White Hall. All the residue of his estate he gives to his brother, Thomas Hey-ward. ' The testator died soon after, and his widow, Mrs. Margaret Heyward, went into possession of the property devised in trust for her. Mrs. Heyward, in the year-, married Wilson Glover. The bill charges that, during the coverture, she was in possession of all that estate she derived from her first husband, Daniel Heyward’s will, as her own and separate estate, and enjoyed the same free from the let, control, or interference of the said Wilson Glover, and continued in like manner, in possession after his death, (she having survived him,) until her own death in 1832.
    Thomas Heyward, the residuary devisee of Daniel Heyward, by his will, gave his whole estate, real and personal, to his wife, Mrs. Eliza Heyward, and she by deed executed in 1832, released to the complainants, Elias Horry and Paul Trapier, all the revisionary interest which Thomas Heyward took in the personal es-. tate of Daniel Heyward after the life estate of Mrs. Glover, in trust for the complainants, Mary A. and James F. Heyward.
    The bill charges, that the slaves who constituted part of Mrs. Glover’s life estate, were by her, in her life time put into possession, by way of loan, of her son, John Heyward Glover, now also deceased, and at his death came into the possession of his executors. The object of the bill is to obtain the delivery of the slaves who were given by Daniel Heyward to his wife, afterwards Mrs. Glover, for life, or their descendants, and to have an account of their hire from the death of Mrs. Glover also to have an account of the cattle, &c. The executors of John Heyward Glover, the surviving executors of Wilson Glover, and the administrator of Mrs. Glover, are made parties to the bill.
    The first question made, was, whether the bill would lie, as the complainants have adequate remedy at law, by an action of trover or detinue. Independently of considering the tenant for life as a trustee, bound to account, and therefore, amenable to this court, it has been determined by the Court of Appeals, in the case of --, decided at Columbia the last spring, that as a general rule, a bill may be maintained for the specific delivery of slaves. Some exceptions are stated, but this case does not come within the exceptions, but within the express reason of the rule. Entertaining jurisdiction for this purpose, the court will do complete justice between the parties, in relation to the whole property and the matters of account.
    Then it becomes merely a matter of evidence to identify the slaves who are subject to the disposition of the will.
    By the inventory and appraisement of the estate of Daniel Heyward, made in 1783, it appears that there were then on the Springfield plantation, twenty-two slaves, who are named. It is not surmised that any of the original slock are now in existence, but those now claimed, are claimed as the descendants of the former.
    The testimony chiefly relied on by the complainants, is, that of the witness, John Fereebee. This witness thinks, he heard John. Heyward Glover, say the Heywards had some claim on negroes after his mother’s death. Witness “ thought they were the negroes that he said belonged to his mother. He said, one woman at Wrightfield, named Funny, belonged to his mother. Fanny is now alive, and has, he believes, fourteen children and grand children. Nancy and her children, Solomon, Venus, Phillis, and November— one of these mentioned, died last fall, aged about four years — Sam, Robert, June, Stephen, Adam, June, Affie, Sylvia; Sally died last week, she was about four years old. Witness says, lie rcognizes some of the negroes of H. Glover’s estate, by the name of Springfield gang, has heard the negroes call them so, and no one else. Fanny and her children and grand children are a portion of them ; also, Charley, Sampson, Joe, Tom, Harriet, Monday, Tirah, Rachael, Mary Ann, Accabee, Hannah, Toney, Polly and children.”
    An objection was taken to the last part of the witnesses’ testimony — that the negroes called these the Springfield gang — as being hearsay from slaves. But it docs not strike me in that point of view. The effect of the testimony does not depend on the credit to be given to the slaves whose declaration are testified to. The fact that the slaves did call them so, depends on the credit of the witness who was examined. Then the inference is drawn from that fact, that it cannot be conceived why the slaves should have called them so, if they were not so in fact. It is as if the witness attempting to identify them by their names, had testified that the slaves called one Fanny, or another Toney. This could not be called hearsay. Another portion of the testimony of the witness, with aspect to what bis toother told biro, Í consider inadmissible.
    
      This testimony is, I think, entitled to its weight, but it is very strongly corroborated by other circumstances. For the part of the defendants there is opposed to it the testimony of the witness Richard Y. Carey, (who was examined, however, on the part of the complainants.) The testimony of this witness was given in a very confused and precipitate manner, and I may not have taken it down with perfect accuracy. The amount of it was, that he was in the service of John Heyward Glover, managing- his plantation, from 1810 to 1821 ; that there were a certain number of slaves, (eight altogether,) known as the Springfield gang, who were first removed from Springfield, to a place called the Old Store, and thence to Mr. Glover’s plantation of 'Wrightfield ; these -were mostly super* annuated and are dead, without children. In this last particular, he js corroborated by Ferrabee. But thus far his testimony is not inconsistent with that of Ferrabee. There may have-been other Springfield negroes besides those brought fiom the Old Store to Wrigmfield, unknown to the witness, indeed he says, Col. Glover did not pretend to point out all the negroes that were to go to Judge Heyward’s family after his mother’s death. But he adds, that in ISIS, he with the assent of Col. Glover, gave to James' Heyward a list of those slaves, then amounting to eight. In this there seems to be some contradiction. With respect to Fanny the witness is more explicit. He states that she was not one of the Spriugfield negroes. He kuew her at about the age of nineteen, when she was brought from Wilson Glover’s Swamp plantation. This Í suppose to be his reason, for not thinking her one of the Spriugfield negroes, in addition to his never hating heard her so called. This seems to be in some degree contradictory of Ferrabee, but it is not absolutely inconsistent. She may have been sent from Springfield to the Swamp and thence to Wrightfield. If there were more direct contradiction, however, 1 think the circumstances give the preponderance to Ferrabee’s testimony. First, the intrinsic improbability oí such a gang of twenty.four slaves, pretty well apportioned as respects men and women, becoming extinct during a lapse of fifty-three years, and defendants indicate no other slaves as being descendants of the stock in question.
    Mr. Nathaniel Heyward, who was examined as a witness, stated that he never heard of the Springfield gang of negroes having died, or of any extraordinary decrease ; and from his opportunities of knowing this could hardly have occurred without his having heard of it.
    The testimony of Mrs. Hamilton, was, that about the time referred to by Carey, (25 years ago, which must have been about 1810, or 1811,) Mrs. Glover passing by the Springfield plantation, spoke of the gang of slaves as then existing on it.
    But more satisfactory than these is the testimony of Mr. John Huger. He states, that a short time before the death of Heyward Glover, lie saw a list of the negroes, in the hand writing of Hey-ward Glover, which was sent by him to his mother, with an offer to deliver them up. These negroes the witness heard Wilson and Mrs, Glover, speak of as connected with the will of Daniel Hey-ward. Mrs. Glover offered them to the witness for her life, hut' he declined receiving them. According to the list, they then amounted to 25 or 30. He believes the negroes are now at Wright-field. Mr. Huger identifies no particular negroes, but the number stated by him agrees very well with the number .now claimed. It was agreed, however, at the hearing, that the estate of Wilson Glover and Mrs. Glover, have been divided between their children, Heyward Glover and Mrs. Huger, (wife of John Huger;) and on that division the negroes at Wrightfield, (by which, I understand the negroes now in question,) were not divided or brought into account. Now connect this with the testimony of Mr. Huger, and can 1 possibly avoid making the inference, that they were reserved from division on the knowledge of the parties, that Mrs. Glovers’s interest in them had terminated with her life, and that they were not subject to division. Nor is this inference weakened by the testimony on the part of the defendants, to shew that there had been an unusual mortality among the Springfield negroes. A paper was produced, ill the hand writing of Wilson Glover, purporting to be an account of the slaves in 1783, and having the word “ dead” writ■ten opposite to many of their names. Ido not understand this to purport that they were then dead. The paper is an account of slaves then removed from the Spriufield plantation. I conclude the memorandum “ dead,” to have been made afterwards ; perhaps at various times, as the deaths occurred. If so, it affords no evidence that the gang did not increase. No doubt all the original stock are dead now. The births of two children are noted in 1783. This seems to have been done at the time of making the list, and I suppose they were then born, but the paper does not purport to give any account of births afterwards. But if all so marked were dead at that time, it may very well be that the residue have increased to the number now claimed. Nor do I attach any importance to the testimony of the witness, Broughton, that heard Mrs. Judge Heyward say, she believed they were all dead, or of Mrs. Jane Glover, that she heard of the negroes having been re. m'oved to Pedee, and of great mortality among them there. It is plain that there must have been some unusual mortality among them, or their numbers would have been much greater than they are.Within the same time many stocks of slaves have doubled or trebled their numbers, while the number now claimed is about the same as that of the original stock.
    I think on the evidence, the complainants claim must he sustained. But I think there is much force in the argument of counsel, that the tenant for life was trustee for the remainderman, and the burden is on her legal representative to account. For many purposes the tenant for life is regarded as trustee. He is bound to make an inventory of the property, that the remainderman may be able to identify it; and by parity of reason, it seems to me that in the particular case of slaves, where the increase goes to the re-mainderman he is bound to keep an account of the increase. Certainly the defendants have not shewn the stock of slaves in question to be extinct. The n iq default of accouating, how shall- the estate of the tenant for life be charged ? I can conceive of no other method than this, to charge it with the value of such a number of slaves as the original stock may reasonably be supposed to have increased to — subjeet to be sure, to evidence of any peculiar circumstances, accident or mortality, which may have prevented increase It seems to me that it would he to the disadvantage of de. fendants to- be charged in this manner. Complainants, however, claim no more than the negroes specified; and to those I think they are entitled.
    Complainants also claim the value of one or two of the slaves,, who died alter the termination of the life estate, and before the hearing. In the case of-., decided by the Court of Appeals at Columbia, at its last sitting, it was held, that in an action of tro-ver, where one of the slaves had died in possession of defendant) the measure of damage was the hire up to the death, or the interest on the value from the time of the conversion ; but the jury were not bound to give the value of the slave when living, unless: there were reasons to believe the death, in some manner, a eonse. ’ querice of the defendant's act. Upon further examination, I have some reason to doubt, whether that case was sufficiently considered. But as it is, I roust be governed by it, and this claim must fail.
    Complainants are also entitled to hire of the slaves from the 1st of January, 1838, until they shall be delivered.
    Evidence was offered of the value of the hire, to save the necessity of a reference ; in which course I understood both parties to acquiesce. There were shown to be fifteen working hands, and the average value of hire for the years in question, was fixed at $60 per annum, making $000 per annum.
    Complainants are also entitled to the value'of the stock of cattle, hogs, and sheep. By the inventory of 1788, it appears that there were then on the Springfield plantation, 188 head of cattle, 39 hogs, and 61 sheep. The value of the cattle was agreed to be $5 per head; but there was no evidence as to that of the hogs and sheep. The ground was taken that a bequest for life of this sort of property, which was said to be consumable in the use, gives the entire property. But this is contrary to the well settled rule. A specific bequest of property, strictly consumable in the use, such as corn, Wine, &c. gives the absolute property. But of a flock or herd, which is capable of increase, the tenant for life, taking the increase, is bound to keep up the number of the original slock. The principle is explained by Judge Nott, in the case of Devlin vs. Patterson, referred to and recognized in Robertson vs. Collier, 1 Hill, Ch. R. 370. Such is the rule of the civil law, from which ours is taken, Domas B 1, Tit. 11, Sec. 451. The case of Randall vs. Russell, 3 Merio, 190, which was relied on, was one in which the stock of cattle, &e. was held to have been given absolutely by the terms of the will.
    Another question arises, what estate is to be charged with these ? There is no shewing that the cattle went into the possession of John Heyward Glover. I cannot charge the estate of Wilson Gloyei with theüJj contrary to complainants own allegation, that Mrs. Glover retained her whole property as a separate estate. The' estate of Mrs. Glover is certainly liable, but her administrator an.' swers, that he has received no effects oí his intestate, and has been informed that she died possessed of no effects besides some articles-in her personal use of little value. It is true that it was agreed that the estates of Mrs. Glover and Wilson Glover, were divided between Heyward Glover and Mrs. Huger, but there was no evidence, as to what her estate was. 1 may conjecture that there was an estate of Mrs. Glover, divided betwen her children before administration. If Heyward Glover did in this way receive enough of his-mother’s estate tor the purpose, it might be followed in the hands of his representatives, and rendered liable for a moiety of the demand. But there was no proof of this, and 1 cannot decree upon Conjecture. The complainants may have a reference upon this matter if they think proper.
    It is ordered and decreed, that the defendant, Mrs. Eliza Glover, executrix of John Heyward Glover, deceased, deliver to the complainants the slaves before enumerated, which are now in her pos--session, and pay for the hire of said slaves, at the rate of nine hundred dollars per annum from the first day of January, 1833, .until-the said slaves shall be delivered, with interest on the hire of each-year from the end of the year.
    WILLIAM HARPER.-
    The defendants appeal on the grounds
    1. That the complainants had plain and adequate remedy at'law,- and therefore, equity ought not to - entertain jurisdiction of the case.
    2. The defendants had nothing of which to make discovery in-any manner relating to the case made by the bill, so that equity could not on the ground of discovery entertain jurisdiction.
    3. That Mr. John Huger, was directly interested in the event of the suit, and therefore his evidence was inadmissible.
    4. That hearsay evidence has been admitted in the case on-points in which it was inadmissible and ought to have been excluded.
    5. That hearsay from negroes has been admitted and ought to have been excluded.
    6. That on the facts legally proved, and the law applicable to those facts,, the decree ought to have been for the defendants.
    KING, Defendants Solicitor.
    
    Complainants insist that' as the decree is opened by the appeal,-the defendants should account for the negroes that died since the’ commencement of this action.
    And that the estate of Wilson Glover, should be charged with the cattle, as it appeared on the evidence that he disposed of them- - — and that they were not the separate estate of Mrs. Glover.
    JPETJGRU & LESESNE.
   Chancellor Harper

delivered the opinion of the court.

The two first grounds of appeal may be disposed of together. •On both the grounds taken in the decree, the jurisdiction of the •court must be supported. It is admitted that during the life time of the tenant for life of personal chattels, he is regarded as a trustee for the remainderman. But the trust is supposed to terminate with his life. But this is contrary to the main purpose, for which he is made a trustee. It is hardly necessary to say, that at com. mon law, there could be no limitation of personal chattels to one for life, with remainder to another, and that a gift for a day or an hour, vested the whole in the first taker. Executory devises and ¡the limitations of the trusts of personalty, by which alone such dispositions can be rendered effectual, are exclusively the creatures of equity. It was by regarding the tenant for life as a trasteo, that equity took jurisdiction, for the purpose of compelling his personal representative to execute the trust, by delivering the property to the person entitled in remainder. The cases cited in argument are amply sufficient to establish this. Then not only the peisoual representative of the tenant for life, but every volunteer and every purchaser with notice, on a well known principle, are bound by ihe trust. If then, as the decree establishes, (and we think correctly,) John Heyward Glover was a volunteer under his mother, he and his personal representative are equally bound to the execution of the trust. And if it were shewn that courts of law recognize the division of personal estate between tenant for life and remainder* man, this would not oust the court of equity of its ancient and ac. customed jurisdiction. See the reasoning of the court in King vs. Baldwyn, 17 Johns.

We think too, that the nature of the property sought by the bill, forms a grouud of jurisdiction. It is for the specific delivery of slaves. We do not feel at all disposed to depart from the principles of the decision in Sarter vs. Gordon, quoted in the decree, to the reasoning of which I refer. It is admitted that in some particular instances, such as are referred to in that case, where there are circumstances to give a peculiar value to the slave, with respect to the person who seeks to recover him, and to shew that damages would be an inadequate compensation, there may be a ground of jurisdiction. But it is urged, that such circumstancas ought to be stated and proved, before the case is taken from the ordinary tribunals of the country, to which it properly belongs.

But if it were necessary to state- such circumstances, I think they are sufficiently stated in the present case. The slaves in question were a gift to the cestui que trust of complainant, by a friend and relation, and were received by her from the gift of another. if the court gives that consideration to the just and honorable feeling whioh causes a man to set a peculiar value on an heir loom, derived to him from his ancestors, and to regard the damages which a jury, estimating its money value, would give, as'nd compensation for its loss, is there less ground for its interposition to give him slaves — sentient and intelligent beings — derived to him from a friend or ancestor, whom he may be supposed to love or venerate. Are not family slaves, who are often, and I think I may say generally, attached dependants, of as much value to the feelings oí the owner as a piece of family plate or a family picture. As was said by the chancellor, in Fells vs. Read, “It would be great injus. tice if an individual cannot have his property, without being liable to the estimate of people who have not his feelings upon it.” It was urged, that an effectual remedy was given by the late act regulating the action of trover. But that act only provides, that security shall be given for the forthcoming of the slaves, to answer the damages which may be recovered. If the defendant will pay the damages the title of the slaves is vested in him. But it is on the ground of the inadequacy of damages as a compensation, that the court interferes.

I am of opinion, however, in pursuance of the views in Sarter vs. Gordon, that when a man states that his slave has come into the possession of another, who refuses to deliver him, or that he has contracted for the purchase of specific slaves and the vender refuses to perform his contract, he states a sufficient ground of equity jurisdiction. Any other construction would render the law uncertain and impracticable. It is admitted that in some cases, a bill may properly lie for a specific delivery — as where the slave has been born and brought up in the owners family, or has for a long time belonged to it, so that a peculiar attachment may be supposed to have been formed, or has peculiar qualities, which render him of more value to the owner than to any one else ; or where a contract has been made for a slave on account of such peculiar qualities, and the object of the contract1 could not be obtained without a specific delivery. Or suppose a mother to be converted by a stranger, having an infant child in the possession of the master, or a husband or wife to be so converted, leaving the other in the master’s possession. But how are these circumstances to be as, eertaiued by evidence 1 By what rule will you fix the length of time that a slave shall have belonged to his owner, so that he may be supposed to have formed a particular attachment for him ? Will you go into evidence of the slave’s character and qualities, to determine whether they are such as give him a peculiar value to the feelings of his owner, or to have formed a probable inducement to the purchaser in making a contract for him ? Suppose him to be one of a family of slaves still in the owner’s possession, and who are rendered of less value by his loss, (which is often the case,) will jmu fix the degree of relationship — such as that of parent or child, husband or wife — which would authorize the court to interfere ? Such a construction would tend greatly to litigation, and afford room for great looseness of discretion. I can think of no safe or practicable rule but that already expressed — that if a man’s slave has come into the possession of another who refuses to deliver him, or if he has contracted for specific slaves, he has a right to a specific delivery. But if the contrary appears — if he contracted for slaves generally, with no view to any particular individuals, or if they were contracted for as merchandize, to sell again, the remedy is at law.

I agree with the appellant’s counsel, that when there is a complicated question of title, when there is much conflicting testimony, or more especially when the credit due to testimony is to be weighed, a jury is the proper tribunal for the trial of those questions. And if the suggestion had been made below, 1 might perhaps 'nave directed an issue. But it was not demanded below, and at the present stage of the case, when so great delay would be occasioned to the parties, and having no serious reason to doubt the correctness of the conclusion to which I have arrived, I think we are not authorized to direct it now.

The next ground relates to the admissibility of the testimony of John Huger. The rule is, that to disqualify a witness, “ the interest must be a present, certain interest, and not uncertain or contingent. So it was held that a steward was competent to prove that a fine was payable on the death of the lord, although the establishment of the affirmative might render a readmission necessary and entitle him to a fee.” 2 Stark. Ev. 745. The record must certainly be evidence to fix or rebut his liability in a future action. As observed in Cotchett vs. Dixon, 4 M'Cord 314, “it is not enough that he has an interest in the subject matter m litigation— it must be an interest in the event of the particular cause.” What is the cause at issue ? The bill states that the defendant Mrs, ©lcyer, is in possession of certain slaves, which are claimed as bc« ing descended from those bequeathed by the will of Daniel Hey« ■ward, which the complainants state they are prepared to identify by proof. The defendant requires the proof to be made, and urges in defence that the stock of slaves bequeathed by Daniel Heyward has perished. The testimony of the witness would seem rather to be against his interest in this cause. It is not disputed but that these slaves once belonged to Mrs. Glover. If they are still part of her estate, undivided, he has a claim in right of his wife to a moiety of them, which would be defeated by the recovery of the complainants. If they were divided as part of her estate, and fell to the share of John Heyward Glover, his representative would have a claim against the witness for contribution. In this cause theD,he has no interest. But it was thrown out in argument, aud the court intimated that there might be just ground for the opinion, that another case might be made in which he would have an interest. If the complainants should fail to identify the slaves, and if the defendant failed to prove that the stock had perished, then the estate of Mrs. Glover might be mide liable for the estimated value of such a stock of slaves, she having been trustee for the remain-derman, and the witness and John Heyward Glover, having divided her estate, it might be pursued in their hands, if the complain, ants should fail to recover m this case. This is similar m principle to the cases of Briggs vs. Cuch, 5 Esp. N. P. C. 99 ; Duncan vs. Ball, 2 Nott and M Cord 153 ; Lightner vs. Martin, 2 M'Cord 214, and Harth vs. Johnson, 2 Bailey 183. In an action for the breach of warranty of soundness of a horse or slave, the defendant’s vendor may be a witness for him, though a verdict in favor of the defendant would obviate the chance of the wituess’ being made liable in a future action. It may be said, as in Johnson vs. Harth, it is true, that if the complainants recover against the present defendant he will have no right of action against the witness, because he will have sustained no damage, and therefore, it may be said that the judgment will be of benefit to the witness by obviating the chance oí his being made liable in a future action. But this is not the sort of interest that will disqualify a witness ; nor is it in this sense, the law says the verdict must be evidence for or against him. It is not like the case of an action for the breach of warranty of title, in which a verdict against the defendant would of itself be the foundation of an action against his vender.

If the present bill should be dismissed, that would be no evidence for or against the witness, in a future action to be brought against him. But if the present complainant should succeed, if is thought the decree would be evidence in the event of such ari action as has been surmised. If the complainant succeeds, he' will have no right of action against any one in respect of his present claim, because the claim will be satisfied. The decree may be evidence, not as a judgment, but as a fact to make out the proof of his having received satisfaction. If be had received satisfaction by agreement with the defendant, this would have been equally a bar. If two persons were suspected of a trespass, or proved to have committed it, it might as well be said that one was an incompetent witness for the plaintiff in a suit against the other, because if he should recover satisfaction of the defendant, this would be a bar to an action against any one else.

The third and fourth grounds form in effect but one. In addition to what is said in the' decree, I may observe that even hearsay evidence may be admitted on a question of pedigree, and this is in reality a question of pedigree. The original stock of slaves are admitted to be all dead, and the question is, whether these now claimed are their descendants ? And it comes within the qualification expressed in Whitelocke vs. Baker, 13 Ves. 514, in relation to-the reception of evidence of tradition. It must be from persons having such a connexion with the parties, that i't is natural and likely from their domestic habits, that they are speaking the truth.

I shall make a few remarks on the last general grouud. Admitting the testimony of Air. Huger, there can be no doubt of the credit due to it. Then it is certain that at the death of Mrs. Glover, there were in the possession of John Heyward Glover, and at the plantation of Wrightfield, twenty-five or thirty slaves to which the complainants are entitled. It is objected that complainants have-not sufficiently identified them. As is said in the decree, no others-are indicated as being those left by Airs. Glover. I'f, as- was suggested, iieyward Glover obtained the slaves now claimed by purchase from his- mother, or from any other person, or in any other inanner, certainly it is to be supposed that it was in the defendant’s power to show this. The particular slaves claimed were named in the bill, aud the defendant put upon her defence. Failing to do so, can she complain that all presumptions should be against her, and that effect should be given to slight testimony for the purpose of identifying the slaves. Without these circumstances, I ad'-mit the testimony of Ferrabee' would be very slight. I cannot doubt but that justice, though not perhaps full justice, has been done-by the decree.

In considering the complainants grounds of appeal, with respect to the claim for slaves who died since the filing of this biíl, tító court is of opinion, that the decision referred to by the decree in relation to the measure of damages in an action of trover, must be confined to the particular case. Certainly the general rule is as contended for on the part of complainants, and supported by the authorities referred to, that if a bailee or pawnee, who are trustees* wrongfully refuses to deliver the deposit or pledge when it is demanded, he thenceforth keeps it at his own risk, and is liable for the value, if it afterwards perishes. See Story on Bailm. 93, 231* and the authorities there referred to. The principle seems to apply to the present case; the tenant for life or volunteers under her being regarded as trustees. The value of these slaves must therefore be a subject of reference. With respect to the second ground* I do not perceive the evidence to charge the estate of Wilson Glover witn the cattle. The memorandum said to be in his hand writing, of their being removed from Springfield, does not furnish evidence of their being taken possession of by him for his own use. The same memorandum includes the slaves removed at the same lime, which it is agreed remained her separate estate. The maker of the memorandum states himself to have taken charge of all the property specified. There is no other evidence whatever, to charge Wilson Glover’s estate in opposition to the allegation of the bill.A reference is ordered with respect to the slaves* who died since the filing of the bill, but in every other respect the decree is affirmed*

King and Memmingek, for motion.

PetigRtj & Lesesne, contra.

Filed 10th March, 1837.

WILLIAM HARPER.

1 concur*

BÁYID JOHNSON*  