
    *Dickinson v. Dickinson’s Adm’r & als.
    January Term, 1846,
    Richmond.
    (Absent Stanard, J.)
    1. Wills — Controversy between Legatees — Witnesses— Wife of Testator. — The widow of a testator is a competent witness, in a controversy between the legatees, in relation to that part of the estate of the testator in which she is not interested.
    2. Slaves--Loan of — Case at Bar, — A father sends a slave to a son upon a loan; but the agent who takes the slave to the son, neglects to inform him that the slave is a loan. The neglect of the agent does not affect the right of the father to have the slave considered as a loan.
    3. Same —Same —Same.—The father having died within five years from the time when the slave so went into the possession of the son; and having by his will disposed of the slave, of which the administrator of the son had notice, the slave may be recovered for the father's estate, after five years from the loan.
    4. Wills. — A party cannot claim under a will and against it.
    This was a suit instituted by Partlow administrator of Henry H. Dickinson, who was one of the legatees of Thomas Dickinson of Caroline county, and others, against William W. Dickinson the surviving executor of Thomas Dickinson, for a settlement of his administration account, and a division of the estate. It appeared, however, that the account had been settled before the Court of Probat, and nearly the whole of the estate had been distributed; and the principal matter of dispute in the cause, was one slave, which the plaintiffs insisted belonged to the estate of Thomas Dickinson, but which the executor alleged belonged to the estate of Thomas T. Dickinson.
    It appeared from the evidence of Mrs. Dickinson, the widow of Thomas Dickinson and others, that in 1822 or ’23, she, at the request of her husband, took with her to Richmond the slave, then a small girl, to be loaned to his son Thomas T. Dickinson, who was then married and resided in Richmond. When she arrived in the city, she sent the girl to her son, and no Conversation passed between her and him upon the subject of said loan. Thomas T. died in January 1825, having previously lost his wife, upon whose death he broke up housekeeping, and sent the girl to Mr. James Sizer, who had married his sister. By his will he disposed of this slave as of his own property. The evidence is contradictory as to what was done with her after the death of Thomas T. Dickinson. Mrs. Dickinson states, and this Court considered her statement as most probably correct, that after the death of Thomas T. Dickinson Thomas Dickinson hired the girl to Mrs. Sizer. She certainly remained with Mrs. Sizer for some time. It appears that Thomas T. Dickinson being indebted to William W. Dickinson, the administrator of Thomas T., agreed with the said William W., that he might take the girl at the appraised value, in payment of the debt due him.
    In 1826, Thomas Dickinson the elder died, having made his will, in which he directed that this girl should be distributed as a part of his estate. And after making a specific provision for his wife, he distributed the remainder of his estate among his children. On this will William W. and Henry H. Dickinson qualified as executors; and subsequently William W. Dickinson sold the girl as his own property.
    When the cause came on to be heard, the Court held that William W. Dickinson should account for the slave, as the property of his testator Thomas Dickinson ; and from this decree William W. Dickinson obtained an appeal to this Court.
    Stanard & Bouldin for the appellant, and Berry for the appellees,
    submitted the case.
    
      
      He had been counsel In the cause-
    
    
      
      See monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.
    
   ALLEN, J.

The evidence of Mrs. Dickinson and Mrs. Oliver proves that the testator of the appellant was in possession of the slave which is the subject of this controversy, within five years before his death ; *and that the negro was sent by the testator to his son shortly after his marriage, as a loan. Mrs. Dickinson brought the slave to Richmond, and sent her to her son; but did not, as it seems, communicate the terms on which she was sent: nor does it appear that the son ever made any enquiries on this point. The omission of Mrs. Dickinson to mention the terms on which the testator sent the slave, could not affect his title. Mrs. Dickinson acted in this transaction, as his agent, and could only transfer such interest to the son as she was authorized to do by the delivery to her. At the most, the title of the son could only have been effectual by an actual adverse possession of five years; and no act of ownership in the ■ mean time, on his part, could divest the title of the father, unless there was something to shew acquiescence or assent on the father’s part.

The son by his will did attempt to dispose of the slave; and it is said she remained after his death under the control of his executor until she was sold to the appellant; and that although the father survived his son for eighteen months, he never asserted any claim to the negro.

There is some conflict in the evidence as to the condition of the slave after the death of the son. Some of the witnesses declaring she was placed at Mr. Sizer’s by the executor of the son; and that he alone exercised any control over her. I think on this point, Mrs. Dickinson’s evidence is entitled to the most respect. She declares the slave was returned to the testator, and hired by him to Mrs. Sizer. Her position with regard to these parties, and her connection with the transaction, makes it most probable that her recollection would be more distinct than that of the other witnesses, having but a very remote interest in the subject. Her testimony as to the subsequent hiring, is confirmed by the will of her husband, in which he speaks of the negro as being then hired to Sizer. There is no evidence that he was apprised of any act of ownership over the "‘slave by the executor óf his son. On the contrary, as the exebutor, whilst he sold all the other property of the son, did not expose this slave to sale, it is but fair to infer that the testator was not apprised of any pretension to the slave adverse to his own.

The loan being established, it was terminated, if not at the death of the son, at least by the testator’s will, which was admitted to record within five years from the time he parted with' possession. And the executor being apprised by the will when he qualified, of the title of his testator, cannot set up the possession subsequently held by him against those interested in the estate.

The claim of the appellant, even if the question of title were not clearly against him, is equally invalid on another ground. The testator disposed of this slave as part of his estate. After making a provision for his wife, by giving her property for life, he directs the residue of his estate, and that given to his wife for life, at her death, to be divided amongst his children, of whom the appellant was one. He has come in under the will, and his portion of the slaves has been allotted to him. “Suppose,” says the Chancellor, in Wilson v. Lord Townshend, 23 Ves. jr. 696, “a legacy is given you by one clause; b3 another, an estate of which you are in' possession is given io another; while you hold that you shall not claim the legacy. You cannot’ dispute the ownership.” And in Kinnaird v. Williams, 8 Leigh 400, this doctrine was affirmed by this Court. No question arises here as to the extent of the interest surrendered, for it is apparent that the interest of the appellant under the will greatly exceeds the value of the slave.

I am for affirming the decree.

BALDWIN, J., concurred in Allen’s opinion.

CABELL, P., and BROOKE, J., concurred in affirming the decree.  