#### *Jesse Kinard Welch*vs. *John M. Kinard. The same*vs. *Samuel Kinard. The same*vs. *Henry Dominick.*

1. J. P. K. made a paper writing as follows: “ Know all men by these presents, that I, J. P, K. for the love and affection which I do bear to J. K. W., son of Catharine Wedeman, formerly Catharine Welch, after my death, to him and his bodily heirs, four negroes, with their future increase,” (naming them,) *“*but in case he should die without bodily heirs, the whole of the said negroes, with their increase, to return to my estate. Given under my hand and seal,” &c.

2. It was *held,*that if the words “ I give” be supplied *“*after my death,” in this instrument, it could only operate as a testamentary paper; and not being legally executed for this purpose, was void.

*Before*Johnson, Ch., *at*Nmberry, *June*Term, 1842, from whose circuit decree the facts of the case will be fully understood.

Johnson, Ch. The late John Peter Kinard, on the 6th June, 1826, made a paper writing, of which the following is a copy, viz: -‘Know all men by these presents, that I, John *257Peter Kinard, for the love and affection which I do hear towards Jesse K. Welch,” (the complainant,) “ son of Catha-rine Wedeman, formerly Catharine Welch, after my death, to him and his bodily heirs, four negroes, with their future increase, namely, Fan and her daughter Martha, Rachel and Minty ; but in case he should die without bodily heirs, the whole of the said negroes, with their increase, to return to my estate. Given under my hand and seal,” <fcc.

John Peter Kinard died intestate in 1828, and administration of his estate was committed to the defendant, John M. Kinard, who states in his answer, that on the advice of counsel, that the deed was void, he sold the negroes as part of his estate. At the sale, defendant, Samuel Kinard, purchased Martha — Sally Bundrick purchased Fann, who sold to defendant, Henry Dominick; and the defendant, John M. Kinard, purchased Minty and Rachel; and it is stated in the bill, and admitted in the answer, that Martha, Minty and Rachel have all had incrense of several children. The prayer of the bill is, that these defendants may be decreed to deliver up the negroes mentioned in the bill, with their issue and increase, and account for their hire.

The complainant’s father died when he was a mere infant, and his mother, on the solicitation of the intestate, consented that he should take him, on his promise that he would raise him as his own and make him his heir, he having no children of his own, and he remained with the intestate until his death.

The paper writing referred to, it will be observed, does not contain any direct gift or grant of the negroes to the complainant; and a preliminary question, and that first to be disposed of, is, whether words necessary to confer a gift or grant, can be supplied.

The rule, as I understand it, is, that when the intention of the parties to any written muniment can be clearly ascertained from the writing itself, though some of the necessary terms are wanting, the court will supply them to effectuate the intention. But in no case when the intention is in the least doubtful, or where different words might be interloped and equally carry into effect the supposed intention.

On examining the deed, no one will doubt that the in*258testate intended to give these negroes to the complainant, nor that he intended that the gift should not take effect until after his death ; and if we interpolate the words “I give to Jesse Kinard Welch” between the name of his mother and the words “ after my death,” we have a perfect deed, which operated in present to take effect in future, which, as I shall have occasion hereafter to show, is a valid deed, and carries the property with it.

Is it possible to supply any other words, consistently with the context, which would operate differently *'l*None has occurred to me. It has, however, been urged, on the argument, that the court might, with the same propriety and consistency, supply words which would give it the effect of a bequest by will, as “ I give and bequeath to the said Jesse Kinard Welch,” (fee., thus rendering it doubtful which was intended, and, therefore, neither, according to the rule, is admissible.

The paper commences in the usual form of a deed: “ Know all men,” *&c.,*never used when a disposition, by will, was intended. It expresses a consideration, unusual and unnecessary in a will. It provides that it is to take effect after the death of the intestate — a provision wholly unnecessary, if a will was intended, for that could not operate until after his death. It does not profess to be a will, nor has it the conclusion or any of the ordinary forms of a will, but those of a deed. It has only two witnesses, one less than is required by law, and cannot, therefore, operate as a will. I conclude, therefore, that the testator could only have intended that it should operate as a deed *in presentí,*without any intendment to the contrary.

The claim of complainant is resisted on other grounds: 1st. That at the time, of the execution of the deed, the intestate was incompetent to dispose of his property, by reason of his imbecility of mind. 2d, That the deed is void, as it is not to take effect until after the death of the donor, and could only take effect as a will.

The evidence in relation to the first of these grounds of the defendant was, that the intestate indulged to excess in the use of intoxicating liquors, and occasionally to great excess, and that in consequence, his mind was in some-degree impaired; but when free from its immediate and ex*259cessive influence, he understood perfectly what he was about; and the persons who witnessed the execution of the deed (William Rutherford and Micajah Súber,) both state that he had perfect command of his faculties at the time. The proof of a settled- intention to provide for complainant is very satisfactory, as was also hi§ recollection of the fact of having made the deed and acknowledging its validity. One of the witnesses, (Silas Tygart,) who lived with him as an overseer, says that he had heard him frequently say, both drunk and sober, that he had *deeded*these negroes to the complainant. This defence cannot, therefore, prevail.

In relation to the second ground of defence, it may be proper to state, though I regard it as important, that there was a formal delivery of the deed at the time of its execution, but no actual formal delivery of the negroes, though they were called into the house, and were present at the time. The delivery of the deed, or of the negroes, could not have been intended to operate otherwise than as provided for in the deed. The question then is, whether this paper writing can operate as a deed, and take effect accordingly.

The case of *Ragsdale*vs. Booker, referred to in *Mangum*vs. *Pitts,*2 Bailey, 588, is, in principle, this case. There the father, by deed, in consideration of love and affection, gave to his children certain slaves, to be equally divided between them, concluding, “I only reserve my life in the said negroes.” The negroes were sold by the sheriff, to pay the donor’s debts, and the court held that the deed could not operate as such, but was testamentary, and revoked by the sale. That case was decided in Columbia, in 1837, on the principle, that an estate in a chattel could not be created to commence in future by a deed. The same question again came up in the *Executors of Duke*vs. *Dyke,*decided in Columbia, December, 1829, but not reported, on a deed to the same effect, differing something in phraseology. The consideration expiessed was, love and affection for the donor’s ihegitimate daughter, Esther Benson, and the following is the grant and reservation expressed. “ I have given and granted, and by these presents do give and grant unto the said Esther Benson, .her heirs, executors and administrators,” certain slaves, naming them, *260*“ to*be and remain her proper right and property after the death of the said Moses Duke,” (the donor.)

Judge Nott, who delivered the opinion of the court, reviews, with his usual clearness and ability, both our own and the English cases, on the question of power to grant an interest or estate in a chattel to commence in future, by deed, and concludes, principally from the tendency of our own decisions, and the current of professional opinions, that such an interest may be created, especially in slaves, the property in which he regards as bearing a stronger resemblance to property in real estate, than other chattels. The judgment was, that the donee was entitled to the slaves under that deed, in an action brought by the executor of the donor, and that must govern this case, being subsequent to the decision in *Ragsdale*vs. *Booker.*

The case of *Mangum*vs. *Pitts,*which followed in 1832, does not conflict with this. That was a parol gift, and the principle on which it was decided is, that a parol gift, to take effect in future, is only a promise to give, and being voluntary, does not bind.

It is, therefore, ordered and decreed, that the defendants in the several cases stated do, upon demand, deliver to the complainant the slaves mentioned in the deed, and their issue and increase, since they have severally had them in possession, each delivering the slaves and their issue and increase, admitted in the pleadings to be in their possession, and any they may have had since the filing of the bill, and that they do severally account before the commissioner, for the hire of the slaves from the time they have had them in possession.

The defendants appealed, and moved the Court of Appeals in Equity to reverse the decree, on the following grounds:

1st. Because the paper writing, under which the complainant claims the slaves mentioned in the bills of complainant, conveys no estate to him, and is inoperative and void.

2d. Because the Chancellor erred in decreeing that the words “I give to Jesse Kinard Welch,” can be interpolated between the words “ *Catharine Welch?*and *“ after my death?*in order to give effect to the writing, as a deed, under which the complainant claimed the slaves.

*2613d. Because no interpolation of words necessary to give effect to a paper as a deed, ought to he permitted in favor of one claiming as a volunteer.

4th. Because, if the words suggested in the decree he supplied in the writing, it cannot be considered as a deed, hut only as a testamentary paper, as it is to take effect after the death of the donor.

Fair, for the Appellants.

This bill is simply for the recovery of the negroes, and is in effect a substitute for trover at law, and must be governed by the rules of law. Cited 2 Ves. 205, 215, 225, 230.

A conveyance to take effect in futuro, can only operate as a testament. 2 Brev. Rep. 414.

A remainder in chattels can not be limited over but by will or deed of trust. The deed here gives no right until after the death of the donor.

In *Duke*vs. *Dyches,*Rice Digest, 154, there is a gift in *pre-sentí,*to take effect *in futuro.*Not so here. It is simply a gift *in futuro.*Cited 1 Bailey Rep. 100; 2 Hill, 543: 4 McCord, 198 ; Rice Eq. 248, 261.

*Pope,*contra.

The paper may be regarded as an attempt to carry into effect the agreement with complainant’s mother to raise him and make him his heir, and will be enforced. Cited 2 Co. Litt. 482, book 2, ch. 38, note H. An interest to commence *in futuro,*may be created in a chattel real. 2 Saun. 307; 3 Co. Lit. 323, note D ; 1 Cruise, title 8, ch. 1, sec. 18, 19; Id. ch. 2, sec. 23 ; 4 Id. ch. 2, 3 ; *Harris*vs. *Saunders,*M. S. Dec. 1833; Cheves Eq. 148.

The court will construe a writing as a w ill when it can not operate as a deed, to carry the intention into effect; but there is no case in which it will be construed as a will to defeat the intention. Bacon Ab. grant 3, D.

It is not necessary to the validity of a deed, that it should take effect on delivery. 4 Kent, 260.

Parol evidence is admissible to show whether a paper was intended as a deed or a will. 2 Nott and McCord, 531; 1 McCord, 430 ; Id. 517 ; 1 Wilson Rep. 682.

A deed for negroes to take effect after the death of the donor, is good. 2 Yerger, (Tennessee Rep.) 582. Cited also, 3 Lev. 307; 1 Ves. sen. 238 ; 2 Id. 198; 4 Cruise, 422, title 32, ch. *26219, sec. 42; Saund. *330;*1 Henry Blacks tone, 535 ; Shepherd Touchstone, 85, 86.

As to the construction of deeds, cited 4 Cruise, title 32, ch. 19, sec. 14, 17, 18, 19, 20; 2 Saund. 96, 97, n. 1; 10 Mod. 45, 46; 15 Eng. Com. L. Rep. 99; 1 Id. 241.

*J. J. Caldwell^*in reply. Cited Powell on Dev. 91; 1 Burrows, 548 ; 1 McCord, 409 ; 4 Id. 12; Riley’s Law Cases, 290 ; decided on the principle of *Mangum*vs. *Pitts.*Prec. in Ch. 209 ; there must be actual delivery. Cited also, 2 Ves. sen. 440, 441 ; Rice Rep. 310; 1 P. Wm’s. 235 ; 2 Id. 15J ; 2 Ves. sen. 195; 2 Vent. 365.

If a voluntary conveyance is defective, the court will not relieve, 2 Johns. Ch. 630 ; McMullan Eq. 491; 1 Story Eq. 188.

*Curia, per*Harper, Ch.

The case of *Ragsdale*vs. *Booker,*cited by the Chancellor, appears to us, as *it*did to him, to be in point.

It is s oposed, however, to. be overruled by that of *Duke*vs. *Dyke,*apart from the consideration, that the words in that case import the passing of a present interest or estate; “ I have given and granted, and by these presents do give and grantand in the present case purport to give nothing till the testator’s death.

“ I give.” If these words are supplied, “ after my death,” the question now before us seems not to have been considered or made. The only question examined is, whether a remainder in a slave may be limited by deed, when there is no trust, after the creation of a life estate, a point which I suppose we may now consider settled. Ho suggestion appears to have been made of the testamentary character of the paper. The case of *Harris*vs. *Saunders*seems to have turned on proof of the delivery. The cases of *Pitts*vs. *Mangum,*and *McGinnis*vs. *Wallace,*Riley’s Eq. Rep., 280, seem also to be in point. It is true that in those cases the gift was made by parol, but I am not aware that any' disposition of personal property, which may be effected by deed, may not be made by parol accompanied with delivery. It is not necessary to make the enquiry, which was principally urged, whether an interest or estate may be created in chattels to take effect *in futuro.*If it be limited to arise on any other event than the death of the grantor, the instrument cannot, of course, be of a testamen*263tary character, or even on that event, if it be founded on a valuable consideration, as in the instance of a term limited to arise on the death of the grantor, with a reservation of rent. In general, a testamentary disposition implies a voluntary disposition, or one grounded only on natural love and affection. But, in contemplation of law, even that consideration does not exist to support the instrument in the present case. The question is, what is a will *1*It would be very difficult to give any definition which would not include the paper in question. The legal declaration of a party’s intentions, which he directs to be performed after his death. (Rice Digest, title Will, 13,) referring to MS, Dec. 1822. *“*Where the paper is in the form of a deed, letter or memorandum, or in any other form, containing an actual disposition of his estate, to take effect after his death.” *McGinnis*vs. *McCants,*1 McC. 517. In *Ously vs.*Carrol, cited in *Ward*vs. *Turner,*2 Ves. 440, the terms were, *“I*have given and granted, and give and grant to my five sisters and the children of the sixth, in case they survive me,” as explained by Butler, J. 2 Ves. jun. 230. The question is not whether the maker supposed it to be a deed or a will. If the only effect is to dispose of property after the maker’s death, it must operate as a will or not at all. It was argued that such papers have been construed wills, in order to give them effect, and not to defeat them, and something of the sort is said in *Habersham*vs. *Vincent,*the case last referred- to. In *Ragsdale*vs. *Booker,*however, the effect of the decision was to defeat the paper. It must be recollected, that the policy of the law requires three witnesses to a disposition of a man’s estate, to take effect after his death; and we are bound to annul and defeat whatever contravenes that policy. But if an instrument like the present can have operation and effect, it ' plain that a man may make a disposition of his entire ;tate, with two witnesses, or one witness, by simply changing the usual introductory words of a will into ‘‘know all men by these presents.”

It is therefore ordered and decreed, that the decree be reversed, and the bills dismissed.

Dunkin, Gh., concurred. Johnston, Ch., absent from indisposition.