#### William M. Dameron *and*Joseph *Gold et al. v.*Mary Gold, *adm’x. of*John Dameron & John Clay, *et al.*

Upon a bill by children against the administrator of their father, charging that negroes had been advanced, upon the marriage, to their mother, and vested in her husband, and that after the death of their father, the negroes were claimed by the brothers and sisters of the mother, as having been a loan and not an advancement — there being no collusion between tire administrator and the plaintiffs, and the former being in possession, and honestly defending his legal *title*— it *was held,*that tire court had jurisdiction to decree a distribution of the slaves by the administrator, but not to try the controversy between the latter and.those claiming a legal title adversely to him.

The bill was filed in Caswell, in 1824, by the children of *John Dameron,*and of *Wv.i -m Gold,*who were the first and second husbands of the defendant, *18
      *Mary Gold.*It charged, that upon the death of *Dame-ron,*the defendant, Mary,. administered upon his estate; and that upon the subsequent death of *Gold, Richard Atkinson,*who was since dead, administered on his estate; tiiat *Mary Gold*had a number of slaves, or their increase, in her possession, which her father, *Edward Clay,*put, by way of advancement, into the possession of *Dameron*about the year 1800, upon his marriage. That the slaves were given to *Dameron,*and had ever since been held by him, or by his administratrix. The bill further charged, that *Edward Clay*died in 1819, leaving a number of children, besides *Mary Gold ;*all of whom, and his executor, were made defendants. It ivas alleged, that no division of those negroes had ever been made between the Avidow and children of *Dameron;*but that lately, the defendants, *Mary*and her brothers and sisters, denying the gift to *Dameron,*asserted a title in themselves, as derived by a subsequent gift from the father, *Edward Clay,*to them, in exclusion of the plaintiffs ,• and were about effecting a division among themselves, by petition filed in the County Court, against *Mary Gold,*for that purpose.

The prayer Avas, for an injunction against further proceedings towards a division amongst the defendants ; that they might be compelled to set out their title, in order to have it litigated and determined in this cause ; and that the slaves might be declared a part of *Vame-ron’s*estate, and be distributed accordingly amongst the plaintiffs and the defendant *Mary,*Avitli the other parts of the estate, of Avhich a general account was sought.

The bill was taken *pro confesso,*against *Mary Gold.*

The executors and other children of *Clay*filed their answers, and denied the gift to *Dameron,*affirming that the negroes were expressly lent him by their father, who afterwards, and after the death of *Dameron*and *Gold,*disposed of them amongst all his children equally. They admitted, that the slaves Avere all in the possession of *Mary Gold,*and averred, that she asserted a title to them, as administratrix of *Dameron,*by virtue of the gift to him ; and that to enforce a di*19vision of those and other negroes, given by their father to all his children, they had instituted the suit in the County Court by petition.

Before the act poif^fa father upon the mar-°[lt .*c„ groes into his /«cTiTitis'a^gift? and not a loan,

0f a second hus- £and cannot en. f01*ce distribution from the administrator of fihe first.

The cause was heard upon the proofs, at June term, 1830, when many depositions were read, which rendered it very doubtful whether there was, in fact, a gilt or a loan to *Dameron.*Under these circumstances, an issue upon that question was directed.

This issue was tried on the last circuit, at Caswell, before SwaiN, Judge. His Honor instructed, the jury, that where a father, immediately upon the marriage of his daughter, or shortly thereafter, sent home with her a slave, who continued in the possession of her husband for a great length of time, the law, before the passage of the act of 1806 *(Rev.*c. 701) inferred, that a gift or advancement to the child was intended by the father— and that the burthen of proving there was no gift or advancement, was upon *the*party who denied it. The jury found, that the slaves were put into the possession of *John*and *Mary Dameron,*as an advancement or gift, and not as a loan.

Upon the return of this verdict, JVas/i, for the defendants,

the children of *Olay,*moved for a new trial;

and Gaston, for the plaintiffs,

moved for further directions. These motions were submitted without.argument.

Hctfot, J udgp,

after stating the case as above, proceeded as follows : Tiffs court finds ho reason to be dissatisfied with the mode of conducting the trial, or the opinions held by the judge of the Superior Court. They seem to be correct, and conformable to the settled law. But supposing the verdict to stand, whether all of the plaintiffs, or which of them are entitled to a decree, or whether any decree can he made against any of the defendants, except *Mary Gold,*arc questions of more consequence, and remain to he disposed of.

The children of *Gold*have no right or direct interest In this property, as the estate of Dameron. It is a ques- *- A , A tion, whether the distributive share of their mother vested in. their father upon the intermarriage, or survived to **■*° *7*
      *20her, upon his death, before an account of *Dameron’s*estate. bail been taken, and distribution made. The court does not mean to determine that question *;*and indeed could not do it, since *Gold’s*administrator is not before ^hc c0Ul’^ If) however, it did survive to the mother, those pi aintiffs have ho interest whatever in the fund, ^ vested in the father, it came to his administrator j who alone can call for the estate; for there may be debts, When an administrator *de bonis non*shall be appointed, and gets the property, there will be a trust for the children and widow, after creditors are satisfied. Under either aspect, the children of *Gold*cannot maintain this suit. And the bill must, therefore, as to them, be dismissed with costs, except as to the defendant, *Marij.*

Becanse ifthe share of the wife cond^ husband," his administrator it^and if it *sw-*vives to her, the no'rig-ht to itC

A court of ’■qaity kas^ a tion on the bill ¿/(«■I a rainst the truste£amSt ttó

, l^u.t where *sl*third person claims a leg».! title adversely to the trustee, a <nra?against the trustee and son^drawln/the question of title equiiy,lgcamiotn he maintained,

The children of liameron can sustain this bill, as against the administratrix of their father, for an account and distribution. And as to the negroes in question, :ire certainly, as between' these parties, to be considered as those of *Üumeron.*To that purpose, the ver-* diet was not necessary. *Mrs. Gold*had confessed the right of the plaintiffs before. Indeed, I must suppose, from the proofs, and the whole course of the proceedings, that she never contested it,- and was made a defendant, not to try the right against herself, so much as to bring a case into - court, in which the right might be tried against the other defendants.

But whether the right, as against those other defend- ***o ants, can be tried in this manner, is a very different and material question, and comes now to be considered, *x*k rom their answer, which is supported by direct and di vers I)ro°Ist B is clear, that before, and at the bringing of this suit, the defendant, *Mary,*claimed the negroes *or ^iei‘se^ aní^her children, as the gift of her father to her husband Dameron, and was in the exclusive posses-sio'n under .that claim. Indeed, the bill itself charges., that the other defendants were then suing *Mary Gold,*to compel a division and delivery of them, and the answer of those defendants admits the fact. The caséis, then, that of a trustee in possession, claiming to hold according to the trust j and a third pai'ty, out of possession *21claiming by a different and distinct title, and denying the right, at law, of the trustee. In such a case, the *' eesíui que'trust,*has filed a bill against the trustee and the adverse claimants, to have the conflicting legal titles litigated and determined here. Can such a bill be supported ?

It cannot be sustained as a bill of inter-pleader, because the/plaintiffs are not in possession.

And *it aeemSy*that the trustee cannot to protect himself draw the *u-s/ui que trust*and a stranger into litigation.

Nor can one in possession, under a legal title, sue one out of possession, to have a pretended title oí the latter declared void, unless upon 'some peculiar ground of equity juródiptiftip

It may be here remarked, that this question is not at all connected with, nor does. any consequence from the former orders, tend to determine it. The issue was directed, because there seemed to be great doubt upon the question of fact, which might be found against the plaintiffs. If so found, it would bo decisive against them. It is true, the court did not then consider the effect of a finding the other way, as has happened. But that finding leaves the equity and question of jurisdiction’open for a decision, upon their proper principles. Supposing then the gift to be established, as far as a verdict on an Issue out of chancery establishes anything, the inquiry recurs, can this bill bo sustained ?

The court is of- opinion, that it cannot. It cannot be made a bill of interpleader, for which it seems to have been designed. That is for the relief of a debtor,, 01* of one in possession, who owes a duty to, or is trustee for one of two, and docs not know which. If either of these parties could have brought such a bill, it would be *Mrs. Gold,*herself, against all the others ; because she has the possession, and there are two claims, I should doubt, indeed, whether a trustee in possession, as such, could call the eesíui *que trust*ami 'a stranger into litiga lion, the latter not claiming by assignment from the former, nor any privity shown between them *(Dungey v. Angove,*2 *Ves. j'r.*312). But a person in possession under a legal title, cannot sue a person out of possession, upon the ground of a protended distinct title, and to have it declared invalid, unless there be a fraud imputed to it, or some other matter peculiarly within this jurisdiction. It certainly cannot bo done upon the mere ground, that the protended title is bad, and his on n preferable, as being prior or paramount. Those are pure questions of law, and the party in possession may well be content *22with the advantage that gives him. If this were not so, there never would have been such things as bills of discovery, or to perpetuate testimony, or to examine witnesses *de bene esse.*The matter would have been drawn at once into this court, to try the right and get relief, as attempted here, instead of getting aid to.try in the proper legal forum. But it is said, the plaintiffs are *cestnis que trust,*endeavouring to enforce the *trust;*and that creates the jurisdiction. By no means. It does against the trustee. But as to third persons, the possession of the trustee is that of the *cestui que trust.*If the legal estate, out of which the trust arise, becomes extinguished, the trust goes with it. While the former continues, the latter does also. To protect that estate, and to defend the legal title, is one of the objects of creating trusts. And the *cestui que trust*must rely on the trustee’s doing his duty, or in default of it, seek the appropriate remedy against the trustee in equity. Upon a suit at law against the trustee, or an adverse claim of the legal estate, the *cestui que trust*cannot, by bringing both the parties here, change the jurisdiction. If so, every estate once.put into trust, or that got into executors’ hands, would be made to cease being a subject of legal litigation. If the trustee transfer the legal title, he is responsible in his own person and estate. If the transfer be accepted with notice of the trust, that is a fraud, and the estate remains subject to the trust. If the trustee remain in possession, and is sued by a stranger, if he collude, or even be insolvent and negligent, equity will permit the *cestui que trust to*use the trustee’s name in defending at law, and coerce the trustee to lend his assistance., But in all those cases, the jurisdiction is not changed, as to the adverse claimant | but the legal title is still tried by the appropriate tribunal. If indeed a recovery had been permitted by collusion, and the possession changed, it stands on the footing of a conveyance in fraud, and with notice, and is within the cognizance of this court. But here the possession remains with the trustee : the title is firmly asserted by the trustee: and the defence honestly and *23faithfully made by the trustee. The hill, it is true, charges collusion. But it is not the allegation, but the-•fact that enables equity to giye relief; and the fact is-clearly proved the other way. If the petition in the County Court were not.a harmless thing — -if an adverse possession, under an adverse title, ‘could be disturbed by a decree in it,, supposing a court could be got to make' such a decree, (even if partition of personal chattels could at all be effected in that way,) yetthcre is no truth in the charge, that *Mary Gold*assented thereto,' and intended, collusively, to betray the interests of her children, with the care of which she stands charged. What would be the effect of this proceeding *7*By malting all. the defendants, by allegation, a unit in the claim against . the plaintiffs, the declarations of the defendant, *Mary,*might he made to destroy the rights of the other defendants! altho’ they claim, in point of fact, in opposition to each other.

Such a feigned allegation of collusion will not authorize the *cestui que trust*to make a stranger- a party to his hill, to enforce the trust, or distribute the trust fund in possession of the trustee. All that ho can ask is to get the property, so that he can defend it himself. If the: trustee wants an indemnity against the advérse claimants, it is time enough to consider whether, any shall be-decreed, and-the extent of it, when asked for by tho-irus-tee. The *cestui que trust*cannot say to a stranger, . you. shall try your legal title with me in equity, and not at, law with my trustee in possession. There is no such-jurisdiction. The verdict must therefore, upon this ground, he set aside, as to all the defendants, except *Mary Gold,*each party paying their own costs of the trial at *law;*and as to the same defendants, the bill must be dismissed with costs in this court.

As between the'plaintiffs, who are the children of the. intestate, *Iiwnierbn*and the defendant *Mary,*the slaves in question are declared to he a part of the estate of the said intestate, and an account ordered, if the plaintiffs should think proper to risk it, and bring on the case again, without making the administrator of the intestate, Gold, a pai’ty.- Per Curiam. — Decree accordik’GX.y*