#### *John K. Henson*v. *Martin Kinard et al.****

A father, in good faith, executed and delivered a voluntary deed of a slave to a' trustee, for the use of his married daughter, &c. and the daughter received possession of the slave, being fully apprised of the deed. After her death, the husband claimed the slave as an absolute gift to his wife. The Court *held*that the slave was well conveyed to the trustee, before it was delivered to the *cesbwi gue trust,*and that the father had no longer any ability to make an absolute gift of the slave, even if he had so intended.

What constitutes a gift — that is to say, what combination of circumstances will bring a case within the legal definition, is, essentially, a matter of evidence, and not of law; and, therefore, each particular case must depend upon its own circumstances — these must be such as to authorize the belief that a gift was intended.

The Statute of Limitations does not run against the title of a trustee to property held in trust for a wife, and in favor of her husband’s possession of that property, in strict conformity to the trusts of the deed.

*Before*Johnston, Ch. *at*Newberry, July, 1849.

The following circuit decree states the facts necessary to a correct understanding of the case :

Johnston, Ch. — The plaintiff, in this bill, against the defendants, Martin Kinard, Henry H. Kinard, and Henry Oliver Henson, seeks, principally, the delivery of a specific slave, named in the pleadings.

The bill alleges that, on the 16th of August, 1842, the plaintiff, Henson, intermarried with Huldah, a daughter of the defendant, Martin Kinard, and that his said wife died the 22d of October, 1844, leaving as her only issue the defendant, Henry Oliver Henson, who is an infant of tender years.

That he, the plaintiff, i( is the lawful owner of two slaves, named Harriet and Sarah, which *he received*from the said Martin, *by way of advancement to his*daughter, your orator’s said wife; and which your orator had in possession, as his *own properly,*for a long time *before and at the time of the death of his said*wife.”

Columbia,

Nov’r. 1849

*372That shortly after her death, having been informed that her mother, the wife of the defendant, Martin, desired to have the care of her said grand child, he, the plaintiff, carried him, and with Jhim the said slave Sarah, as his nurse, to the house of the said Martin, where he left them — still retaining the actual custody of the other slave, Harriet.

That about the month of January, 1848, he “ discovered that a supposed deed, purporting to be executed by the said Martin, and purporting to convey the said slaves to Henry H. Kinard, in trust for the sole and separate use of the said Huldah, during her natural life, and after her death, for the use of her child or children, had been, on the 19th of April, 1845, recorded in the office of Register of Mesne Conveyances, for Newberry district;” a copy of which, marked A, is exhibited.

The bill then charges, “ that the said supposed deed was drawn, at Newberry Court House, in the month of January, 1843, and was then dated, a blank being left for the *day*of the month only ; and that the same was signed, sealed, and delivered by the said Martin, at his own home, in Laurens district, many months after the same was drawn ; but that the date, originally inserted in the said supposed deed, was suffered to remain.”

That “ after your orator discovered the record of the said supposed deed,” he demanded the said slave, Sarah, from the defendant, Martin, who refused to deliver her up to him.

“And that the said supposed deed, recorded as aforesaid, throws a cloud over your orator’s title to the said slaves”— meaning Harriet as well as Sarah — “ and your orator is anxious to have his said title cleared up; especially as both of said slaves are females, and it will be more than sixteen years before his said son,” the defendant, Henry Oliver Henson, *“*will come of age.”

The defendants, Martin and Henry H. Kinard, are then called upon to discover — the former to whom he executed and delivered the said deed, and the latter when it was delivered to him ; and the bill prays that Martin Kinard be ordered to deliver the slave, Sarah, to the plaintiff; that the deed be declared null and void — delivered up and cancelled ; and for general relief, &c.

There is a clear denial in the answers of all the material allegations of the bill. The advancement of the slaves is denied; and it is asserted that they were loaned and not given. It is denied that the deed was executed as stated; but was, in fact, executed on the 2d of January, 1843 — the date inserted in it.

The facts are more fully set out in the answer of Martin Kinard, to the following effect: After denying that the plaintiff is the lawful owner of the slaves, or received them from *373this defendant as an advancement, or in any other way so as to vest the title in him, or ever had the possession of them as his own, either before or after the death of his wife, this answer proceeds to state : that Mrs. Henson, the defendant’s daughter, after her marriage, (which took place at the time stated, August 16th, 1842, without this defendant’s consent,) resided some twenty miles distant from him, with her husband, who was engaged as a schoolmaster, and did not keep house, but boarded out.

That occasionally visiting the defendant, in the close of that year, he learned from her that they intended to begin housekeeping the first of the succeeding year, 1843. The defendant intending to give her two negro girls, but to have them settled on her beyond the control of her husband, and to have the papers executed, and the negroes ready for her by the time she went to her own house, instructed his son, Henry H. Kinard, to get counsel to draw a deed for that purpose. This was in the latter part of December, 1842. On Sunday, the day before sale day, in January, 1843, Henry H. Kinard came up to this defendant’s house, bringing the deed with him, and after filling up blanks, which had been left for the day of the month and the names and ages of the negroes, gave directions how the deed should be executed, and for the cotemporaneous delivery of the negroes with the deed. On the next day, (which was the 2d day of January, 1843.) the defendant executed the deed, and delivered it with the negroes to his daughter, Catharine, for the trustee, in the presence of the attesting witnesses.

Neither the title nor possession of the slaves had ever been out of this defendant’s possession before that time. A few days after, when Mrs. Henson entered upon housekeeping, or shortly afterwards, she took the negroes home with her. After her death, her child and the slave, Sarah, were brought to the defendant’s house by his son, John P. Kinard, from which time forward he has had the care and management of the child and the custody of the negro. The other negro, Harriet, remained in the custody of the plaintiff, who, being the child’s father, was supposed, in the absence of a commissioned guardian, to be as proper a person as any other to have charge of his child’s property. The defendant had no apprehension or intimation of claim on the part of the plaintiff, until he demanded the slave, Sarah, which was about the first of March, 1848.

The answer of Henry H. Kinard, the trustee, corresponds substantially with that of his father. With respect to the reason of his not being present on the 2d of January, 1843, when the deed was executed, he states that being at the time sheriff of Newberry, he was obliged to be at the Court House on that day, which was sale day, and therefore, after filling *374up the blanks in the instrument, and giving instructions for (its due execution, he was compelled to leave it. In the ’ course of the same week, calling again on his father, who was sick at the time, his sister, Catharine, to whom the deed had been delivered for him, handed it to him duly executed as it stands ; and he had it registered afterwards, when Henson entered upon business as a merchant, with a view to avert the claims of persons to whom he might become indebted.

This is the case stated in the pleadings. The facts established by proof, correspond minutely with the statements made in the answers; except that it appears the slaves went to Henson’s later in the year 1843 than would be inferred from the defendant’s pleadings; — the slave, Harriet, in the spring, and Sarah afterwards, towards summer. It is most satisfactorily proved that the deed was executed on the *2d*of January, 1843, and delivered with the slaves, who were then in the donor’s possession. This testimony is clear and indisputable, and corroborated by facts appearing on my notes, which confirm the recollection of the witnesses; whose characters were, moreover, upheld by the concurrent testimony of all the other witnesses, on both sides; and besides, there is no testimony whatever to assign any other date to the transactions. I was, therefore, surprised when the counsel for the plaintiff requested an issue on this point.

The slaves were, at the time, in the donor’s possession, and so far as appears, belonged to him, and never had been out of his custody. They were his to convey to whomsoever he pleased, and upon whatsoever terms he *pleased;*and the gift imparted by his deed, must be held valid and effectual, upon the terms of the deed, unless it was made with intent to defraud some third person. Neither Henson nor his wife had, at the time, any right cognizable by law, to exact the conveyance of any interest in the negroes, but such as the donor chose to create; nor to convert the terms of his transfer to any other than those he chose to impress upon it.

The question is, whether, -when the property came to the hands of Henson, it became divested out of the trustee, in whom the title then was, and converted into Henson’s own absolute property. If the title still remained in the trustee, it was impossible for Martin Kinard, who no longer had title or control, to bestow the property absolutely upon either his daughter or son-in-law, even if he had sent it to them as an unconditional gift.

But he did not do so. The utmost that can be made of the circumstances, would amount to no more than this : that he permitted his daughter to carry the slaves successively to the residence of her husband, who was not apprized whether they were given or not given; or, if given, upon what terms; *375but was left to draw his own inferences from the mere fact of the transfer of possession.

We have some" old cases in which it is said that such a transaction amounts, *ipso*facto, in law, to an absolute gift to the husband. I am now passing by the consideration, that the title was, at this time, already vested in the trustee, and beyond the control of Martin Kinard; and I am considering the case as if the title were still in Martin Kinard. But even under these suppositions, I am satisfied that the position to which I have alluded, is too strong to be maintained.

What constitutes a gift — that is to say, what combination of circumstances will bring a case within the legal definition, is, essentially, a matter of evidence, and not of law; and therefore, each particular case must depend upon its own circumstances — these must be such as to authorize the belief that a gift was intended. A jury or a Court deciding upon evidence, may presume, from a given slate of circumstances, that a gift was intentionally made; but such a presumption is not a legal presumption, but an inference of fact from the evidence — an inference which may or may not be drawn according to the degree of belief which the circumstances are calculated to engender.

If the position be true, that personal property put into the possession of a child, upon or shortly after its ■ setting off in life, amounts in law to a gift, it must be true not only as to slaves, but as to every other species of moveable property. But how contrary is this to universal experience — to the consciousness and belief of all mankind ; and how it must uproot all those delightful charities with which parents follow their children into the world; hovering over them, upholding them with casual and temporary helps, and encouraging their faltering steps, as timidity or inexperience causes them to hesitate. These kind offices must cease, if it be perilous to exercise them; and the law, if it punishes them with loss, subverts its own end; for the affections which it thus freezes out and extirpates, are the very germs of all social virtue and social happiness, and worth to society incalculably more than all the paltry interests, for the protection of which they are vainly sacrificed.

The transfer of possession (as it is improperly called) of personal property by a parent to his forris familiated child, is not, in itself, a gift; and every man who has been helped by his parents, or has helped his own children, knows it and feels it. The act must be judged by its nature and circumstances — by the usages of the community — by those innumerable considerations which no law can define; and from all these sources, conclusions should be drawn conformably to the common sense and common understandings of men.

In many of the older cases, these parol gifts, which it was *376once the fashion to encourage, were sustained by reasoning founded on the interests of creditors, even where the contest was between parent and child, and no creditor was before the Court. This, it appears to me, was a great mistake. There is a great distinction between the case of a creditor, who may be misled by the appearance of property in the hands of a supposed donee, and who may be unable to prove the exact understanding between the parties to the gift, and the case of the donee himself, who need not be misled, and who should have the evidence of the real facts at his command. The inferences may reasonably be more bold in the case of the creditor ; but even there, there is a boundary indescribable by law, but perceptible by the eye of reason and experience, beyond which a jury or a Court should not go.

But the case before us is one in which no creditor is concerned : it is the donee who comes to make the claim. Let us, therefore, look at the circumstances on which the gift, if one exists, depends.

Let us look at the relation of the parties: This is a case m which a son-in-law claims a gift supposed to have been made by the father of his wife. Now, in such a case, the husband’s rights are consequential only to the quantum of interest which the father’s transfer vested in the wife.

The gift, if any, was not to the son-in-law, but to the daughter ; and if she acquired a title, the marital right of the son-in-law attached upon it, and rendered it his own: not otherwise. A husband becomes a purchaser by his marriage; but his right as purchaser is not immediate in all cases. As to every thing that he may have stipulated for before the marriage — -as for instance, in marriage articles and the like— his rights are direct and immediate to himself, and he may insist upon them in that light; but the husband is not a purchaser, in that sense, in this case. What he acquired by the marriage was a vested right in all the property then owned by his wife, and a contingent right to all that she might afterwards acquire — to become vested in him upon its becoming vested in her. The slaves in question did not belong to Mrs. Henson at her marriage; and whether her husband is entitled to the claim he now sets up to them, depends entirely upon the fact whether they afterwards became the property of his wife, by absolute gift to her.

Now, the general proof is against the probability of an intention to make such a gift. The marriage was objected to by the father; and it is in evidence that this came to the knowledge of Henson. It must have been known to his wife also. Under these circumstances, it could hardly have been expected by either of them, that whatever property might be advanced to the daughter, would be put in the power of her *377husband — the party objected to. But these probabilities are converted into certainty by the evidence. It appears that Mrs. Henson applied to her father for the negroes, and that he refused to deliver them until he should have secured them, as he did, by the deed. She was fully apprized of the deed when she received them, and must, therefore, be held to have received them upon its terms. These were the express terms upon which Martin Kinard parted from the possession. I hold that, if Henson, the husband, claims under a possession thus conferred on his wife, he must adopt her acts; and that though not strictly his agent, her acts, in relation to rights which must first exist in her, before they can devolve on him, must bind him. It is barely possible that he could have regarded the slaves, when they came home, as having been absolutely given to his wife; but whether he did so or not, I am of opinion that the terms imposed by the donor must prevail, whether known to him or not. This is a subject upon which I have reason to suppose a diversity of opinion exists among my brethren. It was somewhat considered lately in the case of *Watson*v. *Kennedy;*though that case did not turn on it. Having reflected on the subject, then, it is only necessary to say, as I did on that occasion, that in my judgment, if the donor, in annexing terms to the transfer, acts in good faith, and without a disposition to deceive, his terms must be effectual.

Ante, p. 1.

I have said, however, that Henson could hardly have accepted the possession under the impression that an absolute gift was made. The circumstances upon which I have remarked, raise the conclusion in my mind; nor does he say so in his bill, which, in this respect, is guardedly drawn.

He says he *received*the property *as an advancement to his wife.*Is this saying that the advancement was by *absolute gift;*or only for life, with limitation to her issue *1*And he held them *as his own property.*Is this an assertion that he so held them *in*perpetuo, or only in virtue of his wife’s life estate *1*Does he deny a knowledge of the existence of the deed at the time ? Is this necessarily implied in what he says about the discovery of its registration *7*

But all these observations are unnecessary to the case. The title, at the time the slaves came to his wife’s hands, was in Henry H. Kinard, and Martin Kinard had no title to confer, even if he undertook to confer one on his daughter. This is conclusive, unless either the deed to the trustee was executed *mala*fide, or the trustee was privy to Martin Kinard’s subsequent delivery of possession, and assented to its being so made as to deceive and defraud the husband. The evidence is clear upon the first point. The deed was executed in good faith, in conformity to a long entertained *378design to protect the property from the husband; and, says , the witness, it was openly done, without injunction or request of secrecy. This placed the title in the trustee.

Then, as to his privity with the delivery to the wife, or the terms upon which that was made, there is not a syllable of evidence; and what motive could the trustee have in assisting to impose the property on the husband as his own, which it was not? The trustee’s title was already good, and required no art of this sort to secure it; and what other motive he could have had for such an imposition, is more than I can conceive. But if I could conceive a motive, I am not, therefore, at liberty to impute the act, without evidence.

I have considered the case in reference to both the slaves together ; and I cannot grant the prayer of the bill, for the delivery of Sarah, nor for confirming the title to Harriet, by ordering the deed to be cancelled.

Nothing was said in the argument as to the re-delivery of Harriet; and I have not considered it necessary to investigate the subject; because clearly the pleadings do not make the point, nor admit of its being decided. It would require a cross bill for such a purpose.

It is adjudged that the title to the slave Sarah is in Henry H. Kinard, as trustee, according to the terms of the deed exhibited with the bill; and it is ordered that the bill be dismissed.

The grounds of appeal from this decree are sufficiently referred to in the opinion of the Court of Appeals.

*Pope,*for the motion.

Fair, contra.

*

 Note. — This case was omitted in the reports of cases decided November, 1849, not having been marked for report by the Chancellors. Buthaving, while this volume was in press, been referred to in the opinion delivered at May Term, 1850, by Evans, J. in the law case of *Richmond*v. *Yongue,*it is now inserted.

*Curia, per*

Johnston, Cii.

In affirming the decree in this case it is not to be understood that the Court is committed to any opinion upon the subject of Henson’s being concluded by the terms upon which the property was sent home to him, if those terms were not brought to his knowledge. Upon this subject the Chancellor states in his decree there is a diversity of opinion in this Court. But this Court concurs with him in the opinion, that this case does not depend on that point.

The slaves were well conveyed by Martin Kinard to the trustee, before they were delivered to Mrs. Henson, the *cestui que trust:*and Martin Kinard had no longer any ability to make an absolute gift of them, if he had so intended.

As to the statute of limitations, set up in one of the grounds of appeal: it would be extraordinary to regard the possession of Henson during the life of Mrs. Henson, the *cestui que trust,*in strict conformity to the trusts of the deed, as adverse to the title of the trustee; or, if, (as has been argued,) every *379husband, under similar circumstances, must be regarded as holding for himself, unless notice of the trusts can be fixed upon him. Such a doctrine would speedily extinguish all trust estates.

It is ordered, that the decree be affirmed, and the appeal dismissed.

The whole Court concurred.

*Decree affirmed.*