#### *D. Reeves*& *others*vs. *George H. Tucker*& *others.*

When a testator or intestate has died in the possession of personal property, and that fact is alleged, after tho usual form, in a bill for partition or account against the executor or administrator, the answer of tho latter cannot be received as evidence in support of a title adverse to that of the testator or intestate : — the executor or administrator, asserting such claim, must proceed to support it by the same evidence as if he were the actor in the proceedings.

*Before*Dargan, Ch. *at Barnwell,*February, 1852.

Dargan, Ch. This is a bill for account and distribution of the estate of Joseph Tucker, deceased. The complainants are legatees. ■ The defendant, George H. Tucker, is a legatee ; he is also executor of the estate. The other defendants are legatees.

The present litigation relates entirely to three negroes, alleged *151by the complainants to belong to the estate. The defendant, George H. Tucker, denies that they were the property of the testator, and sets up title in himself.

The negroes in dispute are Isaac, Sam,'(sometimes called Dave,) and Bull, (sometimes called Lewis.) The defendant, George H. Tucker, omitted to include these negroes in his return as executor. The complainants in their bill mentioned this fact; alluded to the claim set up by the executor: and charged that the negroes were the property of the testator, and passed under the residuary clause of his will. The executor contends that his answer, denying the right of his testator to the negroes, and setting up a title, is evidence in his behalf to establish his claim. I think not. The negroes were on the plantation of the testator, in his employment, and under his control; and I do not think that there is any authority or reason for holding, that, under these circumstances, an executor should avail himself of his fiduciary position and possession to seize upon a portion of the ostensible property of the testator, and retain the same in his own right; and, on a bill filed by the legatees, claiming such property as a portion of the estate, by his answer establish his own adverse claim. The answer, in the judgment of the Court, is inadmissible as evidence, and the case must rest upon other testimony.

The testimony conclusively shows that the negroes were in the possession of the testator at and before the time of his death, and were managed and employed as he managed and employed his other negro property. It is true that George H-Tucker lived with his father, and never lived separate from him. He lived, after he was grown, as an overseer or superintendent, and was his father’s general agent in the management of his business. There is no proof that he had any special control or possession of these negroes that might be .referred to the character of a proprietor. There is no proof, in fact, that he had any control or possession at all in reference to these negroes, more than he had of any negroes owned by Joseph Tucker. *152The presumption of title is, therefore, with the latter, and the *onus*lies upon George H. Tucker to prove his claim..

In relation to the slaves Bull and Sam, I am strongly impressed that the evidence is entirely insufficient for any such purpose. As to Isaac, the case is different. George H. Tucker claimed him in his father’s life time. The father admitted that Isaac belonged to George, and what is more, he said that George had bought him. And George H. Tucker, we may well suppose, as his father’s overseer, had the means of purchasing one negro, but not, probably, in the short time he was thus employed, of purchasing three, in addition to the one (Larry) which, by some means, he had got before.

As to Bull and Sam, there is no proof that he ever set up a claim till after testator’s death.

Only the Spring before, he paid taxes on but one negro, and, I suppose, made his return on oath, as by law required. Whether he meant to pay the tax for Isaac or Larry, I have no means of knowing. The fact is significant either way. It is certainly not calculated to produce the impression that he then owned four negroes.

The facts relied on to support the claim of defendant to Bull and Sam, are very inconclusive. They were purchased at the sale of the estate of old John Tucker. George H. Tucker bid them off, took the titles in his own name, executed the mortgage to secure the purchase money, and his name was first on the bond. But the testator was also an obligor on the bond. And it is in proof that he paid the cash instalment for the ne-groes, and for this purpose asked George H. Tucker to lend him the money, which he did. It would have been a very idle ceremony, if George H. Tucker had purchased the negroes for himself, for his father to have borrowed of him the money to make the cash payment. There were very intimate business relations between the father and son. They very well understood each other ; and as the negroes were transferable by delivery, it did not matter which of them took the titles.

*153And as an illustration of this, we have in evidence another business transaction of a similar character. Isaac, Will, and Peggy, were bid off by the testator, in person, at Moncrieff’s estate sale, yet we find George H. Tucker, the first obligor on the bond, Joseph Tucker, the second, and A. Byrd, the third. Titles were also executed in this transaction for Isaac, Will, and Peggy, to George H. Tucker, who gave a mortgage of them to 1. E. Robinson, the administrator of the estate, to secure the purchase money. Will and Peggy, though included in the bill of sale to George H. Tucker, were confessedly bought for Joseph Tucker, and were his property at his death. Will was given by Joseph Tucker’s last will to George H. Tucker, and Peggy to Lewis Tucker, under which bequest they are now claimed. This transaction shows their mode of doing business, and shows what little force is to be given, to the fact that George H. Tucker received the bill of sale for Bull and Sam from the executor of John Tucker.

The conclusion is, that Isaac is the property of George H. Tucker, and Bull and Sam, of the estate of Joseph Tucker, deceased, and pass under the residuary clause of his last will and testament. And it is so ordered and decreed.

It is further ordered and decreed, that partition be made of the residuary estate' of Joseph Tucker, including Bull and Sam, among the parties in interest, according to the provisions of said will.

It is further ordered and decreed, that the accounts of the executor, George H. Tpcker, be referred to the Commissioner of this Court, and that he report thereon.

It is further ordered and decreed, that the parties have leave to apply, at the foot of this decree, for the necessary orders to carry the same into execution.

The defendant, George H. Tucker, appealed on the ground, *inter alia-.*

Because the answer of the said George H. Tucker, (which is in direct response to the allegations of the bill charging the said slaves to be the property of the said Joseph Tucker,) expressly *154denies that the slaves, Bull and Sam, were at any time the property of the said Joseph Tucker; and claims that the said slaves are the property of the said defendant; nor was said answer contradicted.

*Hutson, Bellinger,*for appellant.

*Owens,*contra.

The opinion of the Court was delivered by

Dargan, Ch.

The only comment which I deem necessary on the questions raised in this appeal, in addition to what has been said in the Circuit decree, will relate to the position assumed by the defendant, George H. Tucker, that his answer, denying the title of his testator to the negroes in controversy, should, under the circumstances of this case, be received as evidence of his own title to the said negroes. If the answer is admissible as evidence, I apprehend, that it must be received with the usual force of that kind of evidence, and must prevail, unless contradicted by the testimony of two witnesses, or of one and corroborating circumstances.

The facts are, that the testator died in possession of the ne-groes, the title to whom is involved in this litigation. He used and employed them as he did his other negroes, to the day of his death, without question, or claim on the part of the defendant, who now sets up an adverse right. On a bill filed by some of the legatees against the defendant, George H. Tucker, (who was both legatee and executor,) and against the other legatees, for a partition of the estate, the said executor, in his answer, denied that these two negroes were the property of his testator, and asserted a title in himself. The presiding Chancellor ruled, that the answer of the executor was not admissible as evidence, in support of his claim to the negroes. And this Court is of the opinion, that the Chancellor was right.

When a testator or intestate has died in the possession of personal property, and that fact is alleged after the usual form in a bill for partition or account, against the executor or administrator, the answer of the latter cannot be received as evidence, in *155support of a title adverse to that ■ of the testator, or intestate. But, the executor or administrator asserting such claim, must proceed to support it by the same evidence, as if he were the actor in the proceedings.

What was the particular form of the plaintiffs’ allegations in this case, has not been satisfactorily shown. The brief sets forth only fragmentary portions of the pleadings. It is assumed, that the bill contained the usual statements of bills for partition and account, under the like circumstances.

The appeal is dismissed, and the Circuit decree affirmed.

Johnston, Dunkin, and Wardlaw, CC., concurred.

*Appeal dismissed.*