DECEMBER TERM, 1839.

#### CLABORNE WATSON *vs.*EDMUND W. OGBURN.

Tn a bequest of slaves by a testator to his married daughter, *“*to her and the heirs of her body, if any; if not, an equal division to be made between her husband and herself at her death, her part to return to the old stock,” the limitation over of the wife’s share is not too remote, but will take eifeet upon her dying without leaving children.

An agreement between one entitled absolutely to one half of certain chargeable slaves, a woman and children, and for life as to the other half, and the remainder-man, that upon the latter’s assenting to the sale of the slaves by the'former, he should have one half of the purchase money, is not inequitable, and will not be set aside.

The plaintiff’s bill was filed in Febttary, 1838, and it charged that William Ogburn died in 1824, having first ly made his last will and testament, wherein, among other devises and bequests, he bequeathed as follows, viz:: “ I give and bequeath to my daughter, Nancy Watson, a negro woman named Fan, and her increase after this date, to her and the heirs of her body, if any; if not, an equal division to be made between Claborne and Nancy, at her death, her part to return to the old stock” — that the plaintiff was the *“*Cla-borne” intended and designated by the testator in said clause, and that “ Nancy,” therein mentioned, was Nancy Watson, who for many years before had been, and then was, the wife *354of the said plaintiff — that the executors named in the will of testntor> Proved the same after his death, assented to the foregoing bequest,and delivered the slave Fan unto the plaint¡g’_ rpj)0 further stated, that the said negro woman af-terwards had six children, one of whom died; that the negro woman and children yielded no profits, but were expensive to maintain; and that the negro woman was disobedient and dishonest; and that for these reasons, the plaintiff, in the month of April) 1836, when slaves were at their maximum price, sold the said Fan and her five children to one Hudolph-us Dodd, for the sum of $2,000, which he charged to have been a very full, if not extravagant, price. The hill then charged that the defendant) Edmund W. Ogburn, claiming to be the agent of the children of the testator, other than the plaintiff’s wife, demanded of the plaintiff the one half of the said price; and threatened, in case of refusal, to bring suit against him therefor, or for the half of the slaves which his constituents claimed by reason of the said bequest; that at the time of this demand, payment ot the purchase money had not been made by the said Dodd; that the plaintiff refused to comply with the demand, because he conceived it unreasonable; but, being an old man, and desirous of peace, consented at last that one half of the purchase money might be deposited with the said defendant, to be held for his constituents until they could be seen by him, and a settlement attempted; and thereupon the said Dodd paid the plaintiff $1,000, the half of which was immediately handed over to the defendant, and executed two notes of $500 each, one payable to the plaintiff, and the other to “ the heirs of William Ogburn, deceased,” the last of which was also delivered to the said defendant; and averred that the money so handed over, and the bond so delivered, to the defendant, were so paid and delivered solely to quiet the apprehensions of those in whose behalf the defendant acted, until an interview could be had between them and the plaintiff, and a better understanding had in relation to the matter in difference between them; but not with an intention to part with his right to the price of the slaves, or any part thereof, under the will of the testator. The plaintiff then insisted, 1st, that under the bequest afore' *355said, he had an absolute interest in the whole of the said slaves; or 2ndly, that at all events he was entitled to an absolute interest in one half thereof, and to the use of the whole during the life of his wife; and, therefore, ought to have the interest of the whole purchase money in lieu of those profits while she lived — and charged that, even if he had surrendered the money and delivered the bond to the defendant absolutely for the benefit of his constituents, yet so far as the same was without consideration, he was entitled to relief in equity. The plaintiff charged that he had repeatedly applied to the said defendant in vain, to procure a meeting of his pretended constituents, and had warned him not to deliver over the money or the bond received from Dodd, to them, and that he understood that they were both yet in the hands of the defendant; he set forth the names of the next of kin or legatees of William Ogburn, for whom the defendant had claimed to act, whom he prayed might be made parties to the bill, with apt words to charge them, (if the Court should deem the same necessary,) but prayed process only against the defendant; and prayed that he might answer the charges of the bill; that he might be decreed to surrender to the plaintiff the money aud bond so received as aforesaid, in order that the bond might be collected, and the whole enjoyed by the plaintiff, as was most manifestly his right; and for general relief.

The defendant admitted, by his answer, the bequest set forth in the bill, and the assent thereto by the testator, and said that the persons interested in the negroes, in the event of the plaintiff’s wife dying childless, having heard that the plaintiff was about to sell the said negroes to a trader, who would carry them out of the State, employed the defendant as their agent, to have the necessary legal measures taken fo prevent the execution of this design; and that, in pursuance of the authority with which he was thus clothed, he informed the plaintiff of his determination to prevent this injury to the rights of his constituents. He said further, that it was then reduced to a moral certainty that the plaintiff’s wife, because of her advanced age, would never have children; and < ^ 7 *7*that it had been a matter of discussion between the plaintiff and the children of Willianq Ogburn, (other than the plain*356tiff's wife,) whether, in the event of her dying without re ^ie plaintiff would be entitled to the whole, or to a moiety only of the said negroes. The defendant further answer-ec¡; that upon notifying the plaintiff of his purpose, as above stated, the plaintiff expressed great solicitude to obtain the defendant’s permission to carry the purposed sale into execution; which was absolutely refused upon any other terms than an equal division of the purchase money between the plaintiff and the defendant’s constituents; averred that to these terms the plaintiff acceded, and thereupon the sale took place, at the price of $2,000, half cash and half on credit; and five hundred dollars was paid directly by the purchaser to the defendant, and a note of $500, made payable “ to the heirs of William Ogburn, other than Nancy Watson,” executed and delivered to him by the purchaser. The defendant expressly denied that the money or note was received by him as a deposit, or upon any other terms than in payment for the interest of his constituents in the property sold; admitted that the plaintiff afterwards forbade him from paying over the money or delivering the bond to his principals, and that the same were still in his hands. To this answer there was a general replication; and testimony was taken on both sides, but it is so unimportant that it is unnecessary to state it.— There was no proof on the part of the plaintiff that the money received and bond delivered to the defendant, was received or delivered upon *any condition'.*

*W. A. Graham*for the plaintiff.

*J. T. Morehead*for the defendant.

Gaston, Judge,

after stating the case as above, proceeded as follows: The plaintiff claims relief in the first place, for that the money and bond in the hands of the defendant, are in conscience *his;*because, according to the legal operation of the bequest'in William Ogburn’s will, the absolute interest in the slave Fan and her increase, vested wholly in the plaintiff, and the ultimate disposition attempted thereof in the will was void. This position is unfounded. The division, in case Nancy Watson shall not have heirs of her body, is directed to take place *at her*death, and therefore the lira-*357iiation over is not too remote. In the next place, he insists that being entitled under the will to the use of these negroes during the life of his wife, he is therefore, in conscience, entitled to the use of the money, the price thereof. We do not feel the force of this argument. According to the plaintiff’s own shewing, the use of the negroes during the life of his wife, was a *charge*upon him, and not a benefit — and a charge for the benefit of all interested in the ulterior disposition. The plaintiff had no right to change the character of the property, without the assent of those whom the defendant represented; and there was clearly nothing inequitable in their refusing that assent, unless a half of the purchase money was *forthwith*paid or secured to them.— And, as it appears that when the sale was made, this was actually done; and there is no evidence to shew any agreement in relation to the sale, other than such as may be inferred from the division of the purchase money, we must presume that the parties|interested deliberately agreed upon this mode of adjusting their respective rights.

To a bin ”|ent his"1 i-y parties.'

The authority of the defendant to act for the children William Ogburn, is not distinctly admitted in the bill; but the plaintiff had meant to deny his authority, and to set aside the transaction because of the want of authority, the bill ought to have contained a distinct averment of the fact. Instead of this, the bill seems predicated upon the assumption that the defendant was not merely an agent, but the trustee of those for whom he acted. This assumption is unfounded — and we. should hold it necessary before the plaintiff could have a decree, that the defendant’s principals should be made parties to the cause. But as we are satisfied whether they be or be not made parties, the plaintiff has no equity whereon to demand our aid, we direct his'bill tobe dismissed with costs.

Per Curiam. Bill dismissed.