#### *John Douglass and wife et al*vs. *Robert Brice et al.*

Negroes purchased by a son and daughter, who resided with their father and managed his plantation and household affairs for him, *held*to be advancements to them by the father, although it did not positively appear that he knew that the bills of sale had been taken in their names, and although, by a will ineffectually attested, he had attempted to bequeath the negroes to them,

where a parent permits a son to purchase in his own name, no trust results to the parent; the presumption is, that the purchase proceeded from natural affection, and was intended as an advancement.

*Before*Wardlaw, Cb., *at*Fairfield, *July,*1851.

Wardlaw, Cb. This bill is for an account and settlement of tbe estate of William Brice, senior.

William Brice, sen., died in May, 1849, leaving seven children: Jane Douglass, Elizabeth Stevenson, James C. Brice, John Brice, William Brice, Robert Brice and Jennet Brice. The estate, which indisputably belonged to him at his death, consisted of a plantation, twelve slaves, namely, Henry, Sarah, Clarissa, Lige, Catha-rine, Charles, big Sam, Ben, Rachel, little Sam, old Eanny aftd Darkay, stock of the plantation and household furniture. On March 24, 1843, he executed an instrument purporting to be his last will and testament, wherein he appointed his son, William, and his nephew, Walter Brice, executors ; devised his plantation to his son Robert, and assumed to bequeath, besides the slaves named above and other chattels, fifteen other slaves, namely, Norman and Winney, to his daughter Jennet; and Bob, Abbey and five children, Martin and R.ose and their four children, to his *323son Robert. This will was attested by three witnesses, one of which was Walter Brice, named therein as an executor. Walter Brice renounced his executorship. William, jun., made probate of the will in common form, qualified as executor, and proceeded in the administration of the estate, until he was arrested by a decree of the ordinary, that the instrument was invalid as a testament, for lack of due attestation. William afterwards resigned his executorship, and Robert received a grant of the administration *de bonis non.*

Our cases have settled that such attestation of a will as was made of the instrument before us, is sufficient as to devises of land, and insufficient as to bequests of personalty. *Taylor*vs. *Taylor,*1 Rich. 531; *Henderson*vs. *Kenner, lb.*474 ; *Workman*vs. *Dominieh,*3 Strob. 589. Robert therefore is entitled to the plantation by devise. The personalty of which the testator was possessed must be distributed equally amongst his children, without reference to advancements, which are not taken into the account where the intestacy is not total. *Snelgrove*vs. *Snelgrove,*4 Des. 274; *Newman*vs. *Wilbourne,*1 Hill Oh. 11.

The plaintiffs claim, as subject to distribution amongst the children of William Brice, not only the estate which indisputably belonged to him at his death, but lands, slaves and other chattels of great value, which the defendants hold under releases, bills of sale, and by possession.

When William Brice -purchased the plantation in 1824, upon which he lived at the time of his death, this plantation and five or six slaves constituted the bulk of his estate. His daughter Jane, and his son James, respectively, married about 1818, left the homestead and were advanced by the father, as he afterwards declared, to the full extent of any share he proposed to allow to them in his estate. The remaining children wrought diligently and successfully in the affairs of the family — the sons in the plantation, and the daughters in the household duties ; the father himself being of infirm health. William, jun. and John had the principal management and direction of the plantation, selling the *324crops, and receiving and investing the proceeds, until January., 1835, when having purchased plantations and slaves for themselves with some of the proceeds of the crop of the home plantation, they withdrew from the family, and managed their own acquisitions. Afterwards Robert managed and controlled the out-door concerns of the family, selling the crops and purchasing property in his own name and that of his sister Jennet, until his father’s death. In 1842 Robert purchased a plantation for himself, and worked thereon, in his exclusive and continued possession, most of the slaves claimed by him, although he still retained the superintendence of the home place, working it with slaves claimed by himself and Jennet, as well as those of his father. Elizabeth intermarried with Stevenson about 1837, received an advancement of four negroes and some other chattels, and left the homestead; and Jennet afterwards had the exclusive management of the domestic affairs of the household.

It is not important to state with fullness and precision the particulars of real and personal estate claimed by the sons, James, William and John, for it is clear that their title to this estate is perfect under the statute of limitations, by more than fourteen years of adverse possession, before the death of their father, without any claim whatever on the part of the father. The bill proceeds upon the notion, that although the legal title to this estate by conveyances and bills of sale may be in the sons respectively, yet as the estate was acquired from the means of the father — the proceeds of his plantation — a trust in the estate so acquired, results to the> father and to his heirs. Rut the presumption of a trust is rebutted, where in such case it is a parent, who purchases in the name of a son, or which is the same thing, allows the son so to purchase; and the presumption is that the purchase proceeds from the motive of natural affection in the parent, and is intended as an advancement to the child. Story Eq. § 1202-3. In this case the advancements are not to be brought into hotch-pot, as the father died testate to some extent.

It is equally clear that Robert Brice is protected in his title by *325the statute of limitations to so many of the slaves as he held in adverse possession, at his separate plantation, for more than four years before his father’s death. His'title to this separate plantation — the Rocky Creek place — is nearly as strong. It is true that he did not have adverse possession of this place for the full statutory term of ten years ; but he purchased and settled it a year or inore before the execution of his father’s will, which makes no mention of it; and we do not hear at any time of any claim to it on the part of the father. It is plain that this purchase was made with the consent and approbation of the father, especially when we consider the whole course of his advancements. One witness testifies, that on one occasion, several years before his father’s death, he heard Robert Brice say that we, (af-terwards naming his father, his brothers, John and William, and himself,) shall make 100 bags of cot.ton this year; and it is argued that this is proof of Robert’s admission that they worked in common, and that he had no separate estate. The remark, as sworn to, is quite too equivocal and flimsy to authorize the deduction.

The main controversy in the case is, whether certain slaves claimed by Robert and Jennet, severally, belonged to them or to their father, at the time of his death. Twelve slaves, which have been already named, are all which have been set down in the inventory as belonging to the father’s estate. Fifteen others, also heretofore named, are mentioned in ineffectual bequests by the father to Robert and Jennet, respectively. Of these fifteen, Winny had been sold; to Bob, Ibby and four of her children, Martin, Rose and one of her children, a good title had been 'acquired by Robert Brice’s adverse separate possession; three of Rose’s children, Ned, Jim and Ann, one of Ibby’s children, Peter Page and Norman, were on the testator’s plantation at the time of his death. Besides these five, several others not included in the appraisement, were also at the testator’s plantation, namely, Greorge, little Sarah, Lydia and four children, Susannah and Sam 3d, Robert and Porter. Robert Brice produces bills of sale to himself, dated as follows: of Rose, February 3, 1834; of Bob* *326April 4, 1835 ; of Ibby and two children, August 13, 1836 ; of George, November 30, 1846. Jennet Brice jn’oduces three bills of sale to herself — one of Winny and Norman, dated May 1, 1838; and another executed by J. W. Hudson, March 22, 1847, and the third for little Sarah. These bills of sale, if valid, convey all the slaves in controversy, except Martin, who is held by possession. No express evidence is given that William Brice, sen., had notice of these bills of sale ; but I am entirely satisfied from all the circumstances of the case of the truth of the statement in the answer, “ that these bills of sale were executed with the full knowledge and approbation of the father.” This is the natural presumption from the existence of the papers themselves ; for fraud cannot be snuffed at a distance where the breeze is not tainted. The hous hold of this old man was remarkably harmonious, industrious, frugal and thrifty; and it is manifest that the father and children proceeded upon the principle of apportioning acquisitions according to the value of the services of the members of a community. *Murrel*vs. *Murrel,*2 Strob. Eq. 148. One witness testifies that after William Brice had made his will, he said “ those of his children who had married and gone off had got their full share of his property at that time, and that the boys had made this property and had the best right to it.” Another witness testifies, that “ William Brice when his will was being drawn up, and afterwards, said he had given his other children what he allowed for them, and that the boys ought to have the other property as they had made it.” Again: the father, by acts and declarations, recognized the title of some of these slaves as being'in Bobert and Jennet, in conformity to the bills of sale. He permitted Robert to establish by exclusive possession title to Ibby and Rose, the mothers of most of the slaves now claimed from Robert; and that some of the young children of these mothers were kept at the home place, probably for convenience of nurture, is a circumstance of little weight in the contrary scale. It is further proved that William Brice said, “ Jennet had a negro woman, Winny and two children, with which she *327became displeased, and directed Robert to sell them; and that Robert did sell them, and purchased for her a family from Mr. Hudson, Julia and her children.” Norman is in the same bill of sale with Winny to Jennet. Against the force of these circumstances the fact principally argued is, that William 'Brice, sen., undertook to bequeath as his own, some of these slaves to his children, Robert and Jennet. But it is quite common for parents in their wills to devise or bequeath in terms to their children, estate that had been in fact previously given as an advancement. Such dispositions are intended rather to magnify the extent of the donor’s bounty, or to quiet litigation among his legatees, than to assert existing title in the subject in himself. There might be something in the argument, if the testator had attempted a different disposition of any of these slaves from that which follows from the operation of the bills of sale ; but such is not the fact. When we add to this, that the testator attempted to cut off by his will each of the plaintiffs from a share of his estate, the inference of claim by the testator to these slaves is destroyed. In my judgment the plaintiffs have got established that William Brice, sen., at the time of his death, was entitled to lands and chattels, beyond what is conceded by the defendants to be his estate. The crop of 1849, as the testator died after the first of March, must be accounted for, according to the agreement, if any existed, for the division of the proceeds among the testator and his children, Robert and Jennet; otherwise, according to the amount of capital invested and of labor employed, regarding the plantation and the twelve negroes appraised as belonging to testator. The testator’s share to be equally divided among all of his distributees.

William Brice, executor, and Robert Brice, administrator, must account for the chattels of the estate, and the funds by them respectively received. It seems that John Brice received for a time the avails of the labor of Clarissa and her children, and he must account to the representatives, and they to the distributees as to this matter.

If an order for the sale of the chattels for partition be necessary, it may be applied for.

*328It is ordered that this'opinion stand for a decree ; that it be referred to the commissioner to take the accounts upon the principles herein indicated. Costs to be paid from the intestate property of William Brice, senior.

The complainants appealed, on the following grounds :

1. That the defendants cannot hold any property, real or personal, claimed by them under the statute of limitations, inasmuch as they have not asked for protection under the said statute by plea, answer or otherwise.

2. That William Brice, sen., being the proprietor or sole owner of the land and negroes, and other property from which the crops were made, was the sole owner of the crops raised on his plantation, and of their proceeds; and was the sole owner of all property purchased thereby ; unless the defendants had, in express terms, proved a gift; or an authority so to invest his monies, and take title or bills of sale in their own right; which they failed to do.

3. That the evidence does not show that William Brice, sen., had ever heard or known, that any bill of sale was .held by any one of the defendants for either of the negroes named in his will, (of date March 24, 1843,) and by which he believed he had lawfully conveyed said negroes, twenty-six in number, as his own property. The complainants, therefore, submit that the said negroes and their increase were rightfully the property of William Brice, sen., at his death.

4. That the *twelve negroes*in the possession of deceased at his death, and NOT APPRAISED as his property, to wit: Lydia, Su-sannah, little Sam, Bobert, Porter and Norman, claimed by Jennet Brice ; and George, little Sarah, Ned, Jim, Ann, Peter Page, claimed by defendant, Robert Brice, of right belong to the estate of deceased; the first five named, and also George and little Sarah, having been purchased since the will was dated, and the remaining five negroes having been included in the will, and all living on the plantation of the deceased as his property.

5. That the entire crop of 1849, raised on his plantation, be*329longed to tbe deceased and his estate, and that the defendant, Robert Brice, as administrator, onght to be required to account for the same.

6. That the defendants are bound to pay the costs of this suit, for the reason that the defendant, John Brice, claimed and took possession after the death as his property, of four negroes, now agreed by defendants in them answer, as belonging to the estate of the deceased, to wit: Clarissa and her children, Lige, Catha-rine and Charles ; the defendants, William Brice, as executor, and afterwards Robert Brice, as administrator, having acquiesced in the claim, or having taken no steps to right the estate; and the complainants having been thereby forced to bring them bill. .

*Buchanan, Hammond,*for appellants.

*Gregg, McAUUy,*contra.

*Per Curiam.*

This Court perceives no error in the decree appealed from. It is, therefore, ordered that the same be affirmed, and the appeal dismissed.

Johnston, Dunkin', Dargan and Wardlaw, CO., concurring.

*Appeal dismissed.*