#### Samuel S. Downey, and Ann A. Smith, *v.*James W. Smith, Maurice Smith, Samuel, H. Smith, *et al.*

*"A*gift, unaccompanied with delivery, and by an instrument not sealed, is not valid; and where a testator bequeathed a slave to his widow" for life, and afterwards to all his children, and While the slave was in the.possession of the widow, some of the children relinquished, '•without consideration, and by a writing not under seal, their interest in the slave to one of their brothers, it was held that the instrument passed nothing.

An executor will not be charged interest on a small sum, too’ inconsiderable for distiibution, which he *bona fide*keeps in hand for a ■general settlement. Nor will he be charged interest on a large sum •received after the filing of a bill for an account, when be makes no opposition to the account, and retains the money to answer the decree. But if an order is made in the cause, authorising him to pay the money into court, and he neglects to do so, he will be charged ■with interest upon it from the time the order was made.

•This bill was filed in the Coart of Equity for Gran-ville county, for an account and distribution of the estate of *Samuel Smith*the elder,- which lie had bequeathed to liis widow during her life, and afterwards to be divided among all his children. *Samuel Smith,*the elder, died in the .year 1800, leaving ten children, all of whom, or their representatives,were either parties, plaintiffs or defendants. The defendants *James W. Smith*and *Maurice Smith,*two of the sons of the testator, were his surviving executors. The widow died in 18£8. Among the slaves bequeathed to the widow, was a woman named *Jlmeij.*Soon after the death of their father and during tlio life of his widow, several of the children executed to their brother *Samuel*the younger, a writing, which recited that it was the intention of their father to give that slave to his son *Samuel,*and for the purpose of fulfilling that intention, they thereby *“*relinquish to said *Samuel*the younger, all their claim and title to said slave *flmey.”*The writing was not under seal. The slave was then in the possession of the widow, and so remained until her death and in the piean time had *536four children. Uj>on tlie dcatii of (lie widow, the defendant *Maurice,*as executor of his father, sold these ne-groes as part of his estate, and in his answer stated that' he did so, because lie was advised that the writing was not effectual; but he, and his co-executor, *James W.*Sniilh, averred that they did not mean to claim their shares of the proceeds of the sales- of that family of ne-groes.

Upon the death of the widow, in 1828, tlie estate to be divided was of the value of nearly. S 8,000, and. the executor immediately distributed, tlie slaves of which the title was undisputed, to the value of g.4,184 *81,;*and at that time *Maurice*received from his co-executor, who resided in Tennessee, $290 89 which he had in his hands by the permission of his mother, of the principal money collected on debts due the testator. The residue of the monies collected on those debts bequeathed to the widow for life, had been used by her,, and. was to be accounted for hy her administrator,, with whom no settlement was made, nor could be made* in consequence of tlie death of the executor of the widow,.andia litigation about the probate of his will. At tlie first term, after the filing, of this bill, which was in August 1831, the defendants *James*IF. *Smith*and *Maurice Smith,*executors of *Samuel Smith*tlie elder, answered and submitted to an account. Soon afterwards, the defendant *Maurice*made a settlement with his mother’s administrator,and received the sum of Si528 94 cents. The plaintiffs replied to the answer hut took no testimony. Upon a reference to-the master, accounts were taken upon the answers and interrogatories to the parties. In the report the slave *Jlmey*and her increase were estimated as part of the estate to be divided among ail tlie children, and in the account the defendant *Maurice Smith,*was charged with interest on the sums of money which came into his hands from the time he received them, though it did not appear that lie had used the money, or made any profit on it, up to that time. Upon the coming in of the report, an order was made that the defendants might pay into court such monies as they might admit to be due the "estate, without prejudice to the rights of any of (he parties,

*537The defendant *Samuel H Smith,*executor of *Samuel Smith*the younger, excepted to the report, because by it the proceeds of the sale of *Jhney*and her children were stated to be a part of the estate to be divided among all the children of *Samuel. Smith*the elder, and no notice taken of, nor any effect given (as to any of the parties,) to the agreement or relinquishment made to his testator.

The defendant, *Maurice Smith,*excepted to tho charges of interest against him.

*jOevereux*for the plaintiff.

*Nash*for *Maurice Smith.*

*W. R. Haywood*for *Samuel H. Smith.*

RuffiN, Chief-Jus tice.

After stating the case proceeded:

The exception of the defendant *Samuel H. Smith,*executor of *Samuel Smith*the younger, which raises the question whether the gift of the negro woman *Jhney*is valid or not, must be wholly overruled. The writing is not under seal, and- the possession did not accompany it. The slave was then and for many years afterwards held-by the widow, and could not be delivered. A gift is not effectual, unless it be made by deed or delivery. As to the voluntary confirmation of the release on their part, by the defendants *Maurice*and *James W.*they will doubtless act on it between themselves and their brothers family. But it is not the subject of judicial cognizance in the distribution of the estate by decree. The money is still, in law, the property of those to whom the testator gave it.

To the charges of interest in the account reported by the master, the defendant *Maurice*has put in an exception which we think must be allowed. It could not have been the expectation or wish of any of the parties, that the small sum of $290 89 cents should be distributed amongst ten legatees before a general settlement; and the executor might therefore very properly not offer it. As to the larger sum received from the mother’s administrator, it stands upon a different ground. It came to the defendant’s hands pending this suit for it, and it *538was reasonable tliat the executor should keep it to answer the decreee. He made no resistance to the account and has excepted to no part of the report but the charges of interest. He ought not to be charged interest on the money which he ought to have kept, and as far as appears did keep, until the rights of the parties could be ascertained. It does not appear upon what ground the charge of Jg] 1 96 cents, for interest on a debt of *William Smith,*is made by the master against *Maurice*Smith.— There is no evidence relative to it, and therefore the account must also be corrected in that respect.

After allowing the exception of the defendant *Maurice,*and reforming the report accordingly, the report and account must in all other respects stand confirmed.

There arises however upon the making of the decree, another question upon the subject of interest, which in our opinion, is against the executor *Maurice.*Upon the coming in of the report at September term, 1832, an order was made that the defendants might pay into court such money,as they might admit to be due the estate, and without prejudice to the rights of any of the parties as to their shares. This defendant had then an opportunity of discharging himself from further responsibility, and upon the paying in of the money, the court might have ordered at least a partial distribution. He has not availed himself of the leave granted to .him, and we must presume that he has retained the money, cither for his own use, or *male Jide,*for the purpose of depriving the owners of the use of it, and in. either case it is just that lie should pay interest since that time. The decree will accordingly be that the shares of each shall carry interest from September 1832, until paid. The costs had nearly all accrued before that order; and as no default in the executor prior to that time appears, it is proper that the fund should answer the costs; and therefore they must be paid equally by all the parties out of their shares.

Per Curiam. — Overrule the exception of the defendant *Samuel II. Smith,*and sustain that of the defendant *Maurice Smith,*and decree according to the report of-*539Hie master thus corrected, allowing interest on each of the shares from September term, 1832, of the Superior court for Granville, till paid j all the costs of plaintiffs and defendants to be paid equally by the parties interested in the estate.