#### CLAIBORNE J. SHARPE v. ROBERT T. CAMPBELL.

Where a testator had put certain slaves into the possession of his son in law and daughter A., as he bad done towards several other of his children, and shows by other provisions of his will, a general intention to confirm such possessions as gifts, and adds a qualification as to the gift to A. and her husband, to subject their legacy to the payment of a debt to him, due by the son in law, if the debt was not paid within a certain time, and the debt is paid within the time, such gift will be established, according to the general intention thus expressed.

ACTION of Detinue for a negro slave named Susan, tried before bis Honor Judge Dick, at the Fall Term, 1853, of Iredell Superior Court.

The plaintiff is the administrator of Asenith Sharpe, (one of the daughters of Elihu S. King,) who had intermarried with one Ezra A. Sharpe, and died within three years before this suit was brought. In 1826, her father, without writing, had put into the possession of Mrs. Sharpe and her husband, a negro woman named Violet, who, before the death of the father, E. S. King, had borne two children, named Amanda and Susan. The sole question in the case, is, whether the plaintiff’s intestate acquired a title to the slave Susan, under the will of Elihu S. King; and the clauses of the said will, relating to this question, are as follows. After various other bequests to his wife Elly, the testator proceeds: “ Also, the entire and absolute disposal of a note of hand, which I hold on Ezra A. Sharpe and Joel B. King, for the sum of $800, with interest thereon, which note, if not paid in four years from this date, it is my wish that my executor shall proceed to have two negroes, the children of Violet, Amanda and Susan, now in the possession of E. A. Sharpe and wife, valued by disinterested men, and the amount of the valuation of said negroes, Susan and Amanda, placed as a credit on the said note, and the said negroes to be taken and held by my executors, and disposed of as hereafter directed. To my beloved daughter Asenith, wife of E. A. Sharpe, I confirm such property of every kind, as I have before *521given her, and also the use and labor of my negro woman Yiolet, and the use of her daughter Amanda, provided they choose to keep her (Amanda) at the valuation placed upon her, which negro Yiolet, and daughter Amanda, I leave in trust with my éxeeutors, for the purpose that they shall give the labor of the Said negroes, Yiolet and Amanda, and their increase, to the Said Asenith Sharpe, and her heirs forever.”

And, after other irrelevant provisions, the will contains the following:

“To my beloved daughter, Sarah White, wife of Joseph White, I confirm such property of every kind that I have here, tofore given her, together with my negro woman Dina and her children, John Wesley, Lavina and Henry, and their issue, to her and her heirs forever.”

“ To my beloved son, Richard Franklin King, I give and confirm all the property I have heretofore given him, including the tract of land he lives on, and my negro boy Lewis, to him and his heirs forever.”

Then, after several other clauses, not bearing on this question, comes the following :

“ To my beloved daughter Mary King, I give and bequeath one negro girl named Susan, (child of Yiolet, who is now in the possession of my daughter Asenith Sharpe;) one horse beast, 6addle and bridle, worth one hundred. Also, two hundred dollars in money, to be paid out of my estate, if she fails to get the negro girl above named; but, if she gets the said negro girl, this bequest of two hundred dollars is not to be paid to her and her heirs forever.”

The note of $800 was paid within the four years from the date of the will. The slaves Yiolet, Amanda and Susan remained in the possession of E. A. Sharpe and wife, for two years after the death of the testator, and, at the end of that time, were taken possession of by the executor, and the girl Susan was delivered to the defendant Campbell, who in the mean time had intermarried with Mary King above mentioned^ and they have had possession of said slave, since the year 1846, *522up to the bringing of this suit. It was insisted that, under a proper construction of this will, the plaintiff had no title to the slave in question.

A verdict was rendered for the plaintiff, by consent, subject to the opinion of the Court, upon the question reserved, and afterwards, upon consideration of the question, the Court being of opinion with the defendants, set aside the verdict, and entered a nonsuit, from which judgment plaintiff appealed.

*Boyden,*for plaintiff.

*Mitchell,*for defendant.

Pearson, J.

We concur with his Honor, that the plaintiff failed to show title in his intestate, to the slave sued for; consequently, that the action could not bo maintained.

The intestate claimed the slave under the will of her father, Elihu King, and the case depends upon its construction. In regard to this, we have some difficulty. A prominent intention on the part of the testator was to confirm the gift of all the property, including the slaves that he had, from time to time, put into possession of his several children; but, in reference to the slaves that he had put into the possession of his daughter Asenith, (the pl-dntiff’s intestate, and the wife of Sharpe,) he intended to annex a qualification, so as to subject the two children of the negro woman Yiolet (Amanda and *Susan) to*the payment of a note of $800 that Sharpe owed him, and, in attempting to do so, he has suffered the one idea to become involved in the other, which produces the confusion. We think, however, that it is sufficiently apparent, that, in the event that Sharpe paid off the debt, (for which purpose he was allowed four years,) the gift of the slaves to his wife was confirmed, and was to remain undisturbed in like manner, as the gifts to the other children; and it was *only in the event that Sharpe failed to pay the debt,*that Amanda and Susan were to be valued, and their valuation put as a credit on the note, which was all the benefit he expected Sharpe to take; and the negro woman *523and her child Amanda, were to vest in ihe executors, for the purpose of aiding Mrs. Sharp, and in trust to let her have the use ami profits, and then for her heirs; but the girl Susan was, In that event, taken away from Mrs. Sharpe, and given to his daughter Mary, with a proviso, that, if she failed to get Susan, she was to have ¡§200 in her stead; and the way in which it was expected she might fail, was obviously by the fact of the gift to Mrs. Sharpe becoming confirmed and unqualified by Sharpe’s paying the debt within the time allowed.

This he did; so the gift to his wife stood confirmed, and the contingent provisions never took effect. The result is, that upon the payment of the money, the gift to his wife became absolute, and the property vested in Sharp, the husband. Mrs. Sharpe, therefore, had no title, nor has her administrator any.

Judgment affirmed.