#### Wright and Scales *v.*Lowe’s Executors.

From Rockingham.

•A devise of slaves to executors in trust to liberate is void, and th.e next of lcin are entitled.

The purchasers of distributive shares for a valuable consideration, may proceed-against the executors, under the act of 1762, by a petition in their own names for an account.

The deeds to the purchasers containing an acknowledgment of having received a valuable consideration, the distributees are concluded thereby ; nor shall the executors, on the hearing of the petition be allowed to question it.

*Petition*for a settlement and account. — The petitioners set forth that Isaac Lowe died leaving a wife and children, and having first duly made and published a last will and testament; that Isaac Lowe was the owner of several slaves which by his will he directed his executors to emancipate after the death of his wife ; that the wife was dead, some of the slaves having been emancipated by the County Court during her lifetime, with her consent, that the Court refused to emancipate the rest, and as to them, petitioners averred that Lowe died intestate; petitioners then stated that they had purchased for valuable consideration the shares of the children of Isaac *355Lowe in these negroes, tendered their conveyances for tiie inspection of the Court, and prayed that the executors might be decreed to settle and account with them.

The Defendants filed their answer and submitted whether they were not trustees for the benefit of the slaves, and whether the County Court had jurisdiction. Certain issues were submitted to a jury on the trial below, when the petitioners offered to prove the *actual*payment of the consideration expressed in the deeds from Lowe’s children to them *;*the Court deemed it unnecessary. The Defendants also offered to prove a *want*of consideration in. the deeds, which was rejected by the Court as inadmissible.

It was submitted to the .Supreme Court to say whether the County Court had jurisdiction of the case — this was the principal question. ,

TayIiOB, Chief-Justice. — The Court wherein a petition is filed for distributive shares under the act of 1762,, is invested with such a portion of equitable jurisdiction as is necessary *to effect*complete and final justice in relation to those subjects. If this petition had been filed in a Court of Chancery, the assignment of the distributive shares for a valuable consideration would have placed the assignees in the situation of the *distributees;*and. the deed is conclusive evidence that such consideration was paid. That fact being ascertained, it would have been in all respects a question between those entitled to distribution, and those bound to distribute. When Courts have a concurrent jurisdiction, it would be a mischievous anomaly to measure out their justice by different rules, and I cannot doubt that it was the design of the Legislature to give to the Superior and County Courts full' jurisdiction to decide upon these cases. Every part of the act and especially the mode of proceeding so precisely laid down in it, serves to confirm this idea.

*356Seaweuu, Judge,

delivered the opinion of the rest of the Court:

The only difficulty we have felt in this case, is upon the point of jurisdiction *•,*but upon an attentive examination of the act of *17Q&,*we are inclined to support that of the County Court

The act declares that all legacies, distributive shares, &c. due or owing to any *orphan,*may be *recoverable*by petition to the County Court, and if we are not to understand tiic word “ recoverable,” as referable to the person entitled to receive, it would follow, that on the death of the distributee, his administrator would not be within the provision of the act. Such a construction we think would be confined *;*and as this act was designed to *remedy*the delay and inconvenience incident to the Courts of Chancery, it ought to be construed liberally.

This is a petition to recover a distributive share of the slaves of the testator which are stated to be undis-posed of by the will; and as to the devise to the executors in trust to liberate, the trust is void and the next of kin are entitled, if left not otherwise disposed of by the will j in this will there is no residuary clause, and the case of *Haywood*v. *Craven’s Ex’rs.*determined in this Court is in point.

Then as to the evidence offered to prove a want of consideration in the purchase by the petitioners — that-point was a controversy exclusively between the two parties to the contract, in which the executors had no interest or concern. For though the petitioners were bound to make out an effectual contract before the Court would give them a decree, yet whatever was valid and conclusive between them and the distributees who were parting with their interest, must necessarily be só with the executors who are only naked trustees. The substance of this part of the case is, to whom shall the shares be delivered ? The distributees are *of course*entitled unless they have parted with their interest, and whether they *357have depends upon their contractthe contract set forth is by deed, and for valuable consideration expressed, they are concluded by it, and the executors have no interest in disputing it. And as to the distributees in case payment was made to them by the executors, would be compelled by their deeds to account with the petitioners» all being before the Court, the executors are compelled to do it in the first instance 5 the evidence therefore was properly rejected, and there must be a decree for the petitioners.