#### *Benjamin Miller and others*vs. *Thomas R. Anderson and others.*

There cannot be a valid gift, by parol, of a slave, to take effect at the donor’s death — although the form of an actual delivery be gone through with.

A father intending to make a gift, to take effect at his death, of a negro to his infant child, put, in the presence of ■witnesses, the negro’s hand into that of the child,- and said, the negro was to be the child’s at his, the father’s death: the father afterward’s spoke of and recognized the gift, but he retained possession of the negro until his *death:*— Held, that there was no valid gift.

*Semble,*that, if the donor intends to part with the whole title at the time of the delivery, merely retaining possession for the benefit of the donee, the gift is valid. .

*Before*JOHNSTON, Ch. *at*Bdgefield, *June,*1851.

JohNStoN, Cb. This bill, filed 22d April, 1850, is for an account and settlement of tbe estate of the late James Miller, who *2died intestate, 29tb March, 1847. He had been twice married, but both of his wives pre-deceased him — each of them leaving children.

By the first wife, who died 17th January, 1824, he had three children — Edmund, the oldest, who was born in 1819, and was about five years of age at his mother’s death, and Mary, who was about two years, and Emily, who was about four years, younger.

Edmund married and subsequently died in 1845, during his father’s life, leaving two children, named in the pleadings. Mary also married in her father’s life-time, having become the wife of her co-defendant, Thos. B. Anderson, in the year 1836; she is still alive. Emily married also diming her father’s life, but predeceased him, leaving distributees, who are parties to the suit.

The intestate, by the second wife, had five children, all of whom (or the representatives and distributees of such of them as are dead) are parties to this proceeding. The only question which I am called upon to determine, relates to a gift of three slaves, which James Miller, the intestate, is alleged to have made to Edmund, Mary and Emily, the three children of the first marriage, immediately upon the death of them mother. These slaves, with the subsequent increase, remained in the donor’s possession from the date of the alleged gift to the time of his *death;*and the question is, whether they are'parcel of his, estate, or are to bo regarded (.excluding, of course, them increase,) as advancements to the donees.

The defendant, Anderson, became the administrator of the intestate, and it appears that he produced the slaves in question to the appraisers of the estate; and this circumstance is relied on as evidence against the gift of them by the intestate. But I think this matter is sufficiently explained by the evidence, and that no inference, unfavorable to the donation, is to be drawn from it. The question must turn entirely upon the testimony in relation to the gift, and the explanation which the conduct of the donor affords, as to his intention in making it.

Joseph Noble was present when the donation was made, and was *3produced, on behalf of the donees, to state the circumstances. He says, that on the morning after the mother of Edmund, Mary and Emily was buried, them father, in the presence of witness, witness’s mother and sister, and also in the presence of his own mother and one Hatcher, called up three little negroes, Bob, (about the size of Edmund,) Sue, (about the size of Mary,) and Elvira, (about the size of Emily,) and putting Bob’s hand into that of Edmund, Sue’s into that of Mary, and Elvira’s into that of Emily, made the gift, saying the negroes *were to be theirs*(the children’s) *at his own*death, and that what he did was done in compliance with his wife’s death-bed request.

The depositions of George Tillman were also read on behalf of tho donees. He was the brother of the first Mrs. Miller, the mother of the donees, and though not present at the gift, the intestate told him of it a few days after it was made. No doubt the conversation related to the precise facts spoken of by Noble.

He says, that a few days after his sister’s death, he and his mother, on their way to the intestate’s house, met him, and he then stated to them, that, in obedience to his deceased wife’s request, in the presence of “Benjamin Hatcher and Nancy Noble, he had given Bob to his son Edmund, a negro girl Sue to Mary, and a negro girl Elvira to Emily; and that he had given and delivered the hands of those negroes into the hands of his children above named.”

This witness also testifies to another conversation which he had with the intestate, in August, 1846, in witness’s piazza, while eating peaches. Ho was giving vent to his grief, says the witness, at his being bereaved of his children, Edmund and Emily — and he spoke of his endeavors to provide for them — and told how he had bought, or furnished the means of buying, several negroes for Mr. Anderson — and for Edmund, he had bought a family of negroes at Capt. Wever’s sale — and to John Rainsford, (who had married Emily,) he had given about §2,000, in notes — and then spoke of the reason of his *not having given*possession, which was, that he had no more negroes than he wanted, and that he disliked separating his *4families of negroes and substituting others or strange negroes in tlieir stead, for negroes ivere troublesome at best, and that it was *time enough for them to have them at his death, when he was dead and gone.*This was some seven or eight months before his death. He remarked, “ it might be another *Scott case,*for he had given the negroes in the same way that he understood Mr. John Gray gave a negro girl to a daughter, who married a gentleman by the name of Scott: by delivering the negroes’ hands into the children’s hands.”

It appears, that after Edmund’s marriage, he went to a plantation of the intestate, on Horn’s creek, where he superintended as overseer — Bob being among the hands there. When he left that place and removed to another plantation of his father’s, called Poverty Hill, Bob still continued as before, parcel of the Horn’s creek gang. It also appears, that the intestate administered on Edmund’s estate, but did not include Bob in the inventory.

In relation to Sue, the intestate also retained possession of her until Iris death, notwithstanding Mary’s marriage and settling off in 1836, ten years before he died. The only additional circumstance respecting this slave and her issue, (for she had several children,) was a conversation related by the witness, Walker. This witness says, that after Mary’s marriage, he rode up one morning to the intestate’s, when he was whipping Sue, and, by way of explanation, he stated that Sue behaved very badly; that when Mary went to herself, he had given Sue to her, but she was so mean that Mary would not have her, and he had been obliged to buy another to put in her place.

As to Emily, there is nothing to be added to what has been stated. Though she married and settled off, Elvira, who is supposed to have been given to her, still remained at her father’s.

I have no doubt whatever of the formal delivery of the slaves to the children, in the manner spoken of by Noble, and I have as little doubt that the intestate’s intention was to vest them with a , title in the slaves.

I do not think it necessary to distinguish between the testimony *5of Tillman and Noble. Though the former speaks of declarations of the intestate, from which we might generally infer a perfect gift, yet, as it is evident that in those declarations he referred to what he had done when Noble was present, it would be a perversion of principle to extend the declarations, by construction, beyond the specific acts he then performed — and these we have from Noble, who witnessed them, and they speak for themselves.

I have no doubt, as I have said, that there was a formal tradition of the property, and that the intention was to pass an interest in it to them. But the question is, whether the intestate intended to pass the title to them presently, reserving the custody in himself, for their benefit and as their bailee, or to pass a title to them *in presentí,*to take effect at his death, interposing in the mean time, a title in himself, for his own life, and for his own benefit.

' If his intention was of the former description, I am of opinion there was a good and effectual gift, and having taken possession under his children, the statute, which is relied on for destroying the donees’ title, could not avail for that purpose: — such a possession would not be adverse.

If, however, the intestate’s intention was to reserve a life estate in himself, and to make a present formal delivery by way of investing the donees with the remainder expectant on his death, I am of opinion that this could not be done by parol; and that, whatever forms were adopted, they were ineffectual for such a pm’pose.

In the transmission of title in personal property, the essential thing is delivery, and the essence of that is not the form adopted, but the power which the formal act communicates. There must pass from the donor or grantor to the other party, an irrevocable eontrol or dominion, to reside in the latter from that time forward, irrespective of any change in the intention of the former.

Where a party delivers a deed or instrument, which is in its nature irrevocable, and especially when it is founded upon proper consideration, he puts in the hands of the grantee a power of control and dominion over the property covered by the deed, which *6that party may exercise according to tbe terms of tbe deed, whether tbe grantor may in future time be willing or unwilling.

I have endeavored to explain this, in my opinion, in *Jaggers*vs. *Estes,*(3 Strob. Eq. 379,) to which I refer. An interest in personalty, to be enjoyed or enforced *in futuro,*may therefore be conferred by deed; and it is because tbe power to control tbe property is carried in tbe deed itself. That power of control is a delivery, and there is no dominion where it is wanting; for delivery is neither more nor less than tbe transfer of dominion.

But a future dominion cannot be transferred by parol. In tbe case of a deed, there is always extant in tbe deed itself, and beyond the control of tbe grantor, a power of dominion in opposition to, and in despite of, tbe control resulting to tbe grantor from bis retention of the possession of the property. But where there is no deed, tbe only means of imparting a dominion over personal property is by a delivery of it, with an intent to confer tbe dominion. A formal delivery, when tbe control of tbe property is not intended to go with tbe act, is a *mere form,*and no delivery. It is utterly ineffectual, and the intention to make a substantial delivery, is rebutted by the retention of tbe property, under a claim of title in the deliverer. He intends to pass, at the time, no control over tbe property. His intention is, that that control shall arise at a future time, and not presently; and *the*formal delivery is in anticipation of that future time at which the control is intended to be vested, and when alone a true delivery can be made.

In all cases where a right is intended to pass in personal property, unless there be a deed, or some irrevocable instrument, the property must be delivered with an intent to confer a present control, and so strong is this principle, that in cases *donatio mortis causa,*whore the gift is intended to be conditional merely, and to be defeated by the recovery of the donor, the property must be delivered, or what is the same thing, put within the power of the donee. *(Ward*vs. *Turner,*2 Yes. Sen. 431).

Having thus settled in my own mind that, if it was intended *7that a legal title to the property should remain in the donor for his own life, the gift of the remainder by parol was ineffectual— the question is, whether the evidence establishes a gift of that nature, or whether it establishes a present transmission of title to the donees, coupled with a retention of possession for their benefit, which would amount to a possession on their part.

I think the evidence proves a gift of the former character.

Hardly any thing could be more explicit than the donor’s declaration, at the time of the intended donation, that the property was to be *theirs*(the donees) at his death.' It is not necessarily implied that it should be or remain *Ms*(and not theirs) until that time. _

Then, upon the supposition that the property belonged to the donees *in presentí,*how are we to account for their permitting their father to retain possession after they came of age or married? How are we to account for the intestate not having included Bob in Edmund’s estate ?

Edmund died in 1845, and yet we find the intestate speaking of the gift to him, in 1846, without practically admitting that the right which the gift vested was to take effect until his own death. How are we to reconcile this circumstance without adopting the hypothesis that he retained a title in himself for life ?

Again: The fact of the intestate having stated to Walker that he had attempted to give Sue to Mary, upon her marriage, is relied on. But this circumstance rather fortifies the supposition, that he considered the title to be in himself for life, at that time, and that this new gift was made in virtue of that ownership, and not merely in pursuance of the gift of 1824.

Again: In the answer of Anderson and wife, it is substantially admitted that the receipt given by them to the intestate, for advancements, did not include Sue. This is not reconcilable with the supposition, that the title to Sue passed *in presentí,*(with a power of present control,) in 1824. It is perhaps reconcilable with a gift in remainder, but, as we have seen, such a gift would be ineffectual.

*8Again: By way of accounting for the intestate’s retention of possession, the testimony of Tillman is relied on, that it was inconvenient to him to part from the property. But this is as well reconcilable with the retention of a life estate as the present parting from the entire title, and rather more so, inasmuch as his expressions seem to imply, that, whether he should retain the possession or part from it, depended on his own option, which infers that the ownership was in him. And again, when the intestate said, “ it was time enough for them (the children) to have them when he was dead and gone,” was this acknowledging that the negroes then belonged to the children ? Was it not rather an assertion of right in himself, by which he could, at his pleasure, postpone their enjoyment of the property ?

It is adjudged and decreed, that the slaves, Bob, Elvira and Sue, with their increase, as to the two latter, were parcel of the estate of James Miller, at his death, and, as such, chargeable to his administrator ; that he account for the price at which he sold Elvira; and that the others are subject to partition, for which purpose the parties have leave to take out a writ of partition. It is further ordered, that the administrator account before the Commissioner, to whom all matters of account are hereby referred.

The parties to be at liberty to apply for any other necessary order. The costs to be paid out of the said estate.

The defendants appealed on the grounds:

1. That from the evidence in the case there was a valid gift of the negroes in question by the intestate, James Miller, to Ms cMldren, Edmund, Mary and Emily.

2. Because, it is respectfully submitted, that his Honor, the presiding Chancellor, should have ordered an issue at law, at the request of the defendants, to try the question whether there was a valid gift or not.

*Griffin, Bamhett,*for appellants.

*Carroll,*contra.

*9
      *Per Curiam.*

This Court concurs in the decree of the Chancellor : which is hereby affirmed and the appeal dismissed.

Johnston, Dunicin and D asgan, CC. concurring.

WaRDLaw, Ch. having been of counsel, gave no opinion in this case.

*Appeal dismissed.*