#### *Chesley D. Evans and wife et al.*vs. *William Evans.*

Testator directed his slaves and other property to be divided by freeholders, to be chosen by his executors, into lots — that each one of his children should draw one lot and hold the same for life, with remainder to his or her issue: In making the lots, the freeholders inadvertently put a female slave into one lot, and her infant child into another; the legatee who drew the mother agreed, at the time and before the allotment and division was complete, to take the child and give the legatee who had drawn it his note for $100 — the amount at which it had been appraised — which was accordingly done : *Sold,*upon the evidence, that the child passed, in the division, to the legatee who drew the mother, and that the $100 was paid for equality of partition, and not as purchase money for the child.

*Before*JOHNSTON, Ch., *at Marion, February,*1851.

JOHNSTON, Ob. This suit relates to a part of the estate of General Godbold, late of- Marion district.

His will was executed the 17th day of May,. 1825, and he died in the same year. Throwing out immaterial facts, the circumstances of the case may be briefly stated as follows :

He left six children — Hugh, Charles, John, Elizabeth, Sarah and Mary. Charles died intestate and without issue, in 1827, and before the division of the estate hereinafter to be stated.

■ Sarah married the defendant, William Evans. Elizabeth married first, John Haselden, and afterwards David Monroe, and died in 1844, leaving the plaintiffs, the issue of her two marriages, sur*viving her.

The testator’s will directed his executor to keep his lands and *335negroes together as a planting establishment until the 1st January, 1830; subject to this, the following provisions are found in the will.

1. “ That my lands be divided into six equal parts, as near as can be done, by not less than three r’espectable freeholders, chosen by my executor. After being so divided, the tracts or divisions to be numbered and put into a box or hat and drawn out by a child not exceeding ten years old, beginning with the number first drawn for the oldest heir, my son, Hugh Godbold ; No. 2, for my son, Charles E. Godbold; No. 3, for my son, John M. Godbold; No. 4, for my daughter, Elizabeth Godbold; No. 5, for my daughter, Sarah Ann Godbold; No. 6, for my daughter, Mary Godbold. ”

2. “ The negroes, stock,” &C., to be divided, as the land, by numbers.

3. “ All the property I have loaned,” (there are other clauses giving the above property in the form of a loan to his children,) “ to my sons and daughters, before mentioned, after he, she or they depart this life, shall go to the lawful issue of their bodies; and if either of my children shall ¿lepart this life leaving no lawful issue of their body, then the whole of that part of my estate allotted to him, her or them, should be equally divided among my surviving heirs.”

When the period of division ariived, there were still large debts of the testator remaining unsatisfied, and the executor would not consent to the division unless those were provided for, and himself secured from the consequences of assenting to the legacies. An instrument was therefore drawn up and subscribed by the parties, by which each of the legatees was to take the property to be assigned to him, with the burden of paying off a specified portion of the debts; and it was stipulated that the executor should have power to subject the share of each legatee, in his, (the legatee’s) hands, for the payment of the demands against the estate, and that no legatee should be regarded as having such title to his share as would authorize him to 'dispose of it even towards joaying these demands, unless the price was so applied, and the executor *336was satisfied with the sum raised by the sale. Upon this agreement the freeholders were called in by the executor, appraised the property, and threw it into lots. Charles Grodbold, one of the legatees, being dead, no share was distinctly made up for him ; but the property was thrown into five instead of six lots.

In doing this, by some inadvertence a little female negro child, by the name of Sena, then of such tender age as to render it improper to take it from its mother, was put into one lot and its mother in another. The child had been valued at one hundred dollars. The lot, including the mother, was drawn by Sarah, (Mrs. Evans,) and that including the child by Elizabeth, (Mrs. Haselden.) Evans and Haselden were present; and as soon as Haselden was informed of the fact that the child had fallen to Mm, disconnected from its mother, he remonstrated. This seems to have been before Sarah’s lot was drawn, and while it was uncertain to whom the mother would fall. He said that he would not take the child home ; that if whoever drew the mother would take it at the appraisement, he might, and if he would not, he would give it to him. There was a general concurrence of the appraisers, the executor and every person present, that the child and mother should go together; and Mrs. Evans having drawn the mother, it was, at the executor’s suggestion, and with the appraisers’ approval, (and, as one of them testifies, before the process of allotment and and division was complete,) arranged that Evans should take the cMld along with its mother at its appraisement. He gave his note to Haselden for the amount. How or when he paid the note does not appear; but be this as it may, the division was completed, and the parties received the property accordingly, of which they have retained the possession.

The share assigned to each of the five children on this division was of the average value of about $1,400, (subject to a proportionate share of the estate’s debts still due, which was considerable, and to over advances made by the executor, amounting to over $300,) one-sixth of the property thus assigned, it will be *337remembered, consisted of tbe share of Charles Grodbold, which was thrown in with the others.

Upon the death of Elizabeth, the original share given to her under the will, (according to the cases on Bell’s will,) were vested in her children, who survived her, and who are the plaintiffs in this case, most of whom are minors now, and all of them until lately.

The bill is to have Sena and her children, (for she is now grown and has several children, mentioned in the pleadings,) delivered to the plaintiffs by defendant, Evans, with an account of the profits since their mother’s death; and the ground taken is, that upon the drawing of the lot in which Sena was included, by their mother, she became vested in their mother, subject to the limitations of the will, and that their father was incompetent to dispose of her to Evans.

This is the case for decision. I do not think I have omitted any material circumstance. If I have inadvertently done so my notes of evidence and the pleadings are open for my correction.

I shall decide this case upon a single ground.

It is very clear that if the slave vested in Mrs. Haselden, it vested subject to the debts of the estate, which bore a proportion to Mrs. Haselden’s whole lot greater than the value of this child; and it vested also subject to alienation for estate debts with the concurrence of the executor, which in this case took place. The assent of the executor, which was necessary to the vesting of the legacy, was given only on these conditions ; and upon these conditions the legacy was received. -

It is also clear that in the lot of Mrs. Haselden was included her proportion of the share of her deceased brother, Charles, to which share no limitations were annexed by the will beyond the simple limitation over to Mrs. Haselden and her brothers and sisters. Her proportion therefore was her absolute property, and subject to the disposal of her husband. Who will say, at this distance of time, that Sena did not represent the proportion received of Charles’ share ? But the ground upon which I put the *338case, (whatever forms were gone through,) is that Sena never was really included in the share finally allotted and assigned to Mrs. Haselden.

The case is analogous to the division of Richard Thompson’s estate, which came up before us several years ago, from Spar-tanburg.

The negro in question was appraised, and in the first instance placed in lot No. 4, but, (says Col. Harllee, the executor, who was examined as a witness,) the allotments were modified by the transfer of Sena to lot No. 5. This modification was made at the instance of all the legatees, particularly Mrs. Haselden, and with the assent of the commissioners or freeholders who made the division; and this was done before the division was completed. Mr. Hugh Godbold, another witness and one of the legatees, concurs in this statement, and says he considered this transfer, both then and now, as much a part of the division as any other.

The drawing of this lot preceded the transfer, and it is supposed that the property vested *'eo instanti*upon that drawing. The lot was dictated and adopted not for the purpose of vesting the property, but for the mere purpose of giving satisfactory evidence of impartiality. It was competent for any party to waive it so far as himself was concerned, and certainly it was competent for all the parties together. It was not the allotment, nor even the division which vested theTegacy. That depended alone upon the assent of the executor, and that was given to the lots as modified.

It is objected, however, that upon this view Evans owed $100 for equality of partition; that the limitations of the will applied to that sum no less than the specific property ; and that Evans must make it good to Mrs. Haselden’s children. The answer to that is, that the bill makes no such claim ; nor does it arise incidentally to the claims made in the bill.

Another answer is, that there is nothing in the will to forbid Mrs. Haselden or her husband, (to Avhom the use of the property was given,) from receiving and using the money; that it ivas com*339petent for Evans to pay it to them; arid that the time which has elapsed raises the presumption that he did pay it. If they waste.d it and defeated the remainder of their children, the children must look to them.

I must dismiss the bill; and it is ordered that the same be dismissed.

The complainants appealed, on fhe following grounds :

1. Because the answer of defendant drawn by the executor, admitted the division of the estate of Thomas Glodbold, as charged in the bill of complainant, and alleges that the negro in question was *bought by the defendant*from John Haselden, the father of complainants, to whom she was allotted by the commissioners in partition, with the assent of the executor.

2. Because the return and certificate of the commissioners who were selected to divide the estate under the directions of the will, were conclusive as to said partition, and his Honor erred in admitting or allowing parol evidence to alter or contradict it.

3. Because there was no evidence that the negro Sena was allotted to any other person except to Mrs. Haselden, the mother of complainants ; and it is submitted that such allotment vested the property in her for life, and in her children at her death, and that no act of her husband, or of her executor, after such allotment had taken place, could divest either her or her children, provided the debts were paid as agreed upon with the executor.

4. Because it was proved that no part of the purchase money of Sena was applied to the debts of the estate; but, on the other hand, John Haselden sold more of the property allotted to his wife than would extinguish his portion of the debts of the estate, and his wife’s share of the estate of C. E. Grodbold, the deceased brother; and it is insisted that the defendant being a purchaser with notice, is bound to account and specifically deliver the property in question in the same manner that Haselden would if living.

5. Because, according to the proof the property of the negro in question was vested in complainants’ mother, at the division for *340life, and no act of the parties was established which could legally deprive complainants of their rights in remainder thereto of a specific delivery and account prayed for in the bill.

*Karllee,*for appellants.

*Dudley,*contra.

*Per Curiam.*

This Court concurs in the circuit decree; and it is ordered that the same be affirmed, and the appeal dismissed.

JOHNSTON, DüNKIN, DargaN and Wardlaw, CO., concurring.

*Appeal dismissed.*