#### Cross v. Cross’s Adm’r and Others.

February, 1838,

Richmond.

Parol Gift of Slaves* — Validity—Statute.—By the act of 1758 for preventing' fraudulent gifts of slaves, though a parol gift of slaves may be given in evidence to shew the character of the possession held by the donee, yet the gift itself is void.

Loan of Slaves — When Length of Possession Will Give Lendee Title. — A father in law put slaves into the possession of his son in law on loan; no length of possession will give the lendee title against the lender, till such possession has become adverse by demand and refusal of the possession.

Slaves — Possession by Child — Effect as Evidence of Gift from Parent-† — Quaere.—ft-seems, that, as between parent and child, possession of a slave is very equivocal evidence of a gift from the parent to the child, since the delivery of the possession would equally accompany a loan; and the law would rather infer a loan than gift from mere transfer of possession- Sed quere.

John Tinsley deceased, by his last will and testament bequeathed as follows: “I lend to my daughter Lucy *Cross ten negroes, namely, Sukey, James, Jane, Bartlett, Phebe, China, Ned, Joseph, Beck and Sarah, and I give her two young cattle ; the negroes and the increase I give to the surviving children of my said daughter Lucy Cross to be equally divided between them at her death, but in case any of her children should die in her lifetime leaving lawful issue, then it is my will and desire that such issue shall have what its father or mother would have been entitled to, provided he, she or they had survived his, her or their mother.” The will was dated the 13th October 1795, and recorded in the county court of Hanover in December following, so that the testator died in the latter part of that year. The legatee Lucy Cross was the wife of Samuel Cross, who had been in possession of the slaves bequeathed to her, for many years before the testator’s death, though whether on a loan or on a gift from the testator, was the disputed question in this cause; and he continued in possession of the ten slaves and their increase during his life. He died intestate in 1805. Immediately after his death, his widow took possession of the whole of the slaves, and continued to exercise entire and undisturbed ownership over them and their previous and subsequent increase (which was very numerous) during' *96her life; and she lived til'1 after thé commencement of this suit. Oliver Cross, the eldest son of Samuel Cross, took administration of his estate ; and in the inventory and appraisement thereof returned by him to the county court, these slaves were not mentioned ; and so far from ever exercising or claiming any ownership over them as part of his father’s estate, he acted for some time as the agent of his mother in the management of them, and thereby admitted the right she claimed in them.

The legatee Lucy Cross had four children; Oliver Cross, who died before his mother, leaving five children; Catharine, who married Daniel Lyle, and died before her mother, leaving her husband her surviving, *but not leaving any issue; Thomas Cross, and Elizabeth, the wife, of Benjamin Hazelgrove, both of whom are yet living. The mother, acting as tenant for life of the whole of the slaves, and of the increase thereof, bequeathed to her by the testator John Tinsley’s will, gave the possession of some of them to. her son Oliver in his life time, of others to her son Thomas, of others to her son in law Hazelgrove, and of two to her other son in law Lyle; and Hazelgrove had sold two of those put in his possession, and Lyle was about to sell one of the two he had received.

In January 1835, Thomas Cross and the five children of Oliver Cross exhibited a bill, in the circuit superiour court of Hanover, against their grandmother Lucy Cross, Hazelgrove and Lyle; wherein, after setting forth the will of the testator John Tinsley, and all the facts abov.e stated, they represented, that by the bequest of the slaves to the testator’s daughter Lucy Cross and to her children after her death, Lucy Cross was, after the death of her husband Samuel Cross, entitled to a life estate in the .whole of the slaves and their increase, with remainder to such of her children as should survive her, and the issue of such as should die'before her leaving issue, excluding entirely such as should die before her without leaving issue. And then they stated, that Hazelgrove and his wife Elizabeth had as yet no issue, and it was now wholly improbable that she would leave or have any, yet Hazelgrove had already sold two of the slaves which he had received; that though Catharine, the wife of Lyle, had died before her mother without leaving issue, so that no share of the remainder of the slaves expectant on her mother’s life estate ever vested in her, yet her surviving husband Lyle was about to sell one of the two slaves which he had received; and that Hazelgrove and Lyle supposed they had, and acted as if they had, the absolute property in the slaves that had been put into their possession, and would probably so dispose of them, *as that they would not be forthcoming at the death of the tenant for life, to be divided among the persons who would then be entitled to the remainder, according to the effect of the bequest and executory limitation in the will of the testator John Tinsley contained. Therefore, the bill prayed, that the defendants Hazelgrove and Lyle should be injoined from selling or otherwise disposing of any of the slaves then held by them respectively, and should be compelled to give security to have the slaves now in their possession, forthcoming at the death of the defendant Lucy Cross, for division among the parties who should be then entitled thereto in remainder, and to account for the value of those they had sold ; and general relief.

The injunction was awarded.

The defendants Lucy Cross, Hazelgrove and Lyle, put in a joint answer, in which they denied the title set up by the plaintiffs under the will of the testator John Tinsley : for they alleged, that, shortly after the marriage of that testator’s daughter, the defendant Lucy, with her late husband Samuel Cross, which marriage took place in 1784, the testator gave and delivered, in absolute property, to Samuel Cross, eight of the ten slaves which he afterwards by his will bequeathed to his daughter Lucy, and the other two of the ten were the increase of the eight so given ; that under that gift Samuel Cross took and held all the slaves and their increase, claiming them as his own absolute property by title paramount to the bequest in the will of the donor; and having so held the undisputed possession of the slaves for more than ten years before the death of the testator John Tinsley, the statute of limitations perfected his title to the property : that thus, all the slaves belonged to the estate of Samuel Cross, and were subject to distribution among his widow and children, though they were kept together for the general benefit of the family : that the widow did not choose to claim *her thirds, and have the residue divided, but permitted each child to take and use a portion of the slaves, expecting that at her death tjiey would be equally divided among all her children, including her daughter Catharine Lyle; ten or more of them were put into possession of her son Oliver Cross, of which all but three had been returned after his death ; seven were put into possession of her son Thomas Cross ; thirteen were put into the possession of Hazelgrove, who married her daughter Elizabeth, and other slaves were put in Hazelgrove’s possession, as agent of his mother in law; and two slaves had been put into the possession of the defendant Lyle, the husband of the deceased daughter Catharine. The defendant Hazelgrove admitted, that he had sold two of the slaves he had received. The defendant Lyle denied, that he had sold, or intended to sell, either of the slaves he had received upon his marriage with his deceased wife. And the defendants all insisted, that the slaves in question belonged to the estate of Samuel Cross, and were subject to distribution among all his children, without regard to the executory limitation contained in the will of the testator John Tinsley.

The defendant Lucy Cross died pending the suit, and it was revived against her administrator.

The main question in the cause was a question of fact. There was no doubt, that *97the parent stock of the slaves in question had been in possession of Samuel Cross, for some nine or ten years before the death of his father in law, the testator John Tinsley, having been put into his possession by Tinsley : but the question was, whether they had been delivered by Tinsley to Cross, as a gift to him and his wife? or only upon a loan, so that the lender might have resumed the possession at pleasure?

There were several depositions for the plaintiffs, going to prove, that the slaves delivered by Tinsley to *Cross, were delivered to him only on loan, and that Mrs. Cross and her eldest son Oliver Cross had often so declared. And in corroboration of that evidence, the plaintiffs re-' lied on the circumstance, that the slaves had not been inventoried as a part of Samuel Cross’s estate, as they would have been if it had not been known, that the title to them was derived from Tinsley’s will, not from a gift made by him in his lifetime. On the other hand, there were the depositions of two witnesses, to prove an absolute gift by Tinsley to Cross, shortly after the marriage of the latter; but it appeared, that one of these witnesses must have been about ten and the other about three years old at the time of the marriage of Cross in 1784, shortly after which the gift was alleged to have been made. To account for the omission to inventory the slaves as a part of the estate of Samuel Cross, the defendants shewed the advice of counsel, who (apparently) judging of the title to the slaves from Tinsley’s will alone, advised that these slaves were not to be considered as part of Cross’s estate, and therefore were not to be inserted in the inventory ; though this advice was plainly erroneous, since even if the title was derived from Tinsley’s will, the life estate thereby given to Cross’s wife belonged to her husband, and should have been inventoried as part of his estate.

The circuit superiour court was of opinion upon the evidence, that the parent stock of the slaves in question had . been originally delivered by Tinsley to Samuel Cross, as a gift, more than five years before Tinsley’s death, whereby Cross acquired a perfect title to them ; and therefore, by its decree, the slaves were divided into four parts, and one part allotted to the children of Oliver Cross, one to Thomas Cross, one to Hazelgrove in right of his wife Elizabeth, and one to Lyle in right of his deceased wife Catharine.

The plaintiffs, children of Oliver Cross, applied by petition to this court for an appeal from the decree; which was allowed.

*Lyons, for the appellants.

Scott, for the appellees.

*

Gifts. — On all matters pertaining to gifts, see monographic *note*on “Gifts” appended to Barker v. Barker, 2 Gratt. 344.

†

Slaves — Possession by Child — Effect as Evidence of Gift from Parent — In Scott v. Jones, 76 Va. 235, the conrt, after quoting from Judge Tucker’s opinion in Mahon v. Johnston, 7 Leigh 319, said.: “And in *Cross v.*Cross's Adm’r, 9 *Leigh*245, the same judge said: ‘And I am, moreover, inclined to think that as between father and child possession of a slave is very equivocal evidence of a gift, as temporary loans of young females are very usual from a father to a young married daughter, and from mere possession, unaccompanied by evidence of a gift, there is nothing from which a gift can more fairly be inferred than a loan. In such a case, it is the duty of the court to infer the lesser rather than the greater — the loan rather than the gift. For if the testimony is satisfied by the inference of a loan, upon what principle can we further infer the fact of a gift which is not required by the evidence in the case. ’ Although these observations of Judge Tucker were not necessary to the decision of the case, they were concurred in by Judges Brooke and Brookenbrough, and they have been ever since recognized as furnishing a most safe and satisfactory rule ior the guidance of the courts in this class of cases.”

CABELE, J.

I am of opinion, that the evidence in the cause establishes a loan from Tinsley to Cross, and not a gift; and that, therefore, the slaves in controversy are to be disposed of according to the will of Tinsley. The decree must be reversed, and the cause remanded for further proceedings.

TUCKER, P.

I am of opinion, that the decree in this case should be reversed. The answer states the marriage of Lucy Cross in 1784 ; and that shortly after the marriage, her father Tinsley gave the slaves in question to her husband, who held them for more than ten years before Tinsley’s death in 1795. Hence the gift, if made at all, was made in 1784 or 1785, and was therefore void, the statute of 1758 being at that time in force,, not modified by the proviso now in the statute book, which was first introduced on the 31st December 1787. See 1 Rev. Code, ch. 111, § 51; Turner v. Turner’s ex’x, 1 Wash. 139 ; Jordan v. Murray, 3 Call 85 ; Taylor ex’or v. Wallace, 4 Call 92; Spiers v. Willison, 4 Cranch 398. This is decisive of the question of title; and it is gratifying to place the case upon this ground, instead of resting the proof of a gift alleged to have been made fifty-four years ago, upon the testimony of two witnesses, one of whom was only three years old at the time the gift is alleged to have been made, and the other only ten, and whose memory seems to have been singularly unretentive, except as to the particular fact of this gift.

With respect to the length of possession, it could not give title against Tinsley in his lifetime. The possession was not adverse, for it was with Tinsley’s assent; and under the circumstances, the transaction not being a gift, must be taken to be a loan, which, after five *years, would bar the lender as against creditors or purchasers, but could never ripen into a good title against himself in favour of the loanee. To consider Samuel Cross to have been in adverse possession, we must convert him into a wrongdoer, of which there is no evidence, as he confessedly came into possession by right, and without demand and refusal could not have become a tortfeasor; Williams v. Snidow, 4 Leigh 14.

With these views, it is unnecessary to examine the case farther. I shall only observe, that I think, under all the circumstances, the just inference is, that mrs. Cross held under her father’s will, and did not claim under her husband. I am moreover inclined to think, that as between father and child, possession of a slave is very equivocal evidence of a gift; as temporary loans, particularly of young females, are very usual from a father to a young married daughter ; and from mere possession unaccompanied by evidence of gift, there is nothing from which a gift can be more fairly inferred than a loan. In such case, it is the duty of the court to infer the less rather than the greater, — the loan rather than the gift: for if the testimony is satisfied by the inference of a loan, upon what principle can we further infer the fact of a gift which is not required by the evidence in the case ?

I am of opinion, that the decree be reversed, and the cause remanded for further proceedings.

BROOKE and BROCKENBROUGH, J., concurred in the opinion of the president.

PARKER, J., merely expressed his opinion, that the decree should be reversed, and the cause remanded for further proceedings.

Decree reversed.