#### William L. Yancey and Wife *vs.*Charles B. Stone.

Bill by donee against the administrator of donor for specific delivery of a slave. Gift sustained on proof of declarations of donor that she had given, although she retained possession until her death.

BEFORE •WARDLAW, OH., AT GREENVILLE, JUNE, 1854.

Waedlaw, Ch. The plaintiffs in this bill, in right of the wife, seek specific delivery of the slaves Judy and her child Noe, alleging a *parol gift*of the slaves to the wife by her late mother, Elizabeth Earle, who died intestate in 1852. The slaves remained in possession of Elizabeth Earle until her death, or until some date recently previous, when they passed into the possession of the defendant, who has refused to deliver them on the demand of the plaintiffs. The defendant is son-in-law and administrator of Elizabeth Earle, and claims the slaves in behalf of the distributees of his intestate. Judy is represented to be a good cook, brought up by Mrs. Earle, and belonging to a stock of which several members were given by Mrs. Earle in her lifetime to her children.

The only question in the case involves the fact of gift of the slaves by Elizabeth Earle to her daughter, Sarah Yancey. The testimony of Mary Foster, Susan W. Thruston, and Ann Ervine, respectable neighbors and friends of Mrs. Earle, is in writing, as taken by the Commissioner of the Court. The first of these witnesses, while she states strongly her impression that a gift was made, does not testify to any act or declaration of Mrs. Earle, satisfactorily demonstrating actual gift. She says that in 1841 and ’42, she has heard Mrs. Earle, while chiding Judy, declare her wish that Yancey had the servant, and state that when he did get Judy, the servant would be made to know her place better. In the same conversations, Mrs. E. stated *17that she intended a child, now dead, of Judy, for Betty Robinson. The latter two witnesses examined by the Commissioner, testify distinctly, and that they have, very often, and until dates shortly before her death, heard Mrs. Earle declare that she had given Judy to Sarah Yancey, without expressing any condition of gift or reservation of interest in herself, — that she expressed desire to send the slave to Mrs. Y., in Alabama,— and that she refused to sell Judy to Mrs. Harris, because the slave belonged to Mrs. Yancey. Still, the former of these witnesses, Mrs. Thruston, states her belief (which I do not regard as competent testimony,) that the gift was to take effect whenever Mrs. E. saw fit to deliver Judy; and further proves a somewhat equivocal conversation with Mrs. Yancey, in which the latter claimed that her mother had given Judy to her, and expressed her wish for the services of Judy as a cook, but declined to apply for the delivery of Judy, on the consideration that heV mother needed the services or hire of Judy, and would not probably accept hire from Mrs. Y. The latter of these two witnesses, Mrs. Ervine, also proved that it was only when provoked with Judy, that Mrs. E. proposed to send Judy to the plaintiffs, in. Alabama, and without ever mentioning a specific time of delivery; and that she had heard Mrs. E. express the purpose of giving the infant child of Judy (probably Noe,) to John Robinson. Two witnesses who were examined before me, Austin Bruce and M. B. Earle, testify to offers of Mrs. Earle to sell Judy, some of them shortly before Mrs. E.’s death; the former witness stating that Mrs. E., while rejecting an offeréd price as inadequate, said it made no difference, as she intended Judy for Mrs. Yancey.

The case is submitted to my determination without the aid of argument from counsel, and it is certainly not free from doubt and difficulty.

Parol gifts of slaves are disfavored by the Act of 1832, against the rights of creditors of the donors or subsequent purchasers from them; but here the rights of volunteers only are *18involved. As to tbe latter class, the general doctrine is well declared in *Miller*vs. *Anderson*and *Busby*vs. *Byrd,*4 Rich. Eq. 1, 9 ; that there cannot be a valid gift of a slave by parol, (although a formal delivery be employed,) to take effect at the donor’s death, or, by parity of reasoning, at any uncertain future time; for there can be in such case no delivery, that is, a present parting with control over the chattel. Yet, if the donor intends, at the time of delivery, to part with the whole title and control of the chattel, the gift may be valid, although he retains the custody of the chattel. As title to personalty passes by delivery, if one who was owner declares that he has given a chattel, it will be presumed that he used in the gift the form of tradition necessary to the transfer of title; but the force of his declaration, and of the presumed tradition, may be impaired or defeated by proof that he reserved a life estate, or any interest dependent on his dominion of the chattel.

The question here is, did Mrs. Earle intend to retain control over Judy until she chose to deliver her, or did she, for convenience, and with consent of the donee, retain possession of the slave, after transferring all dominion ? On the testimony of Mrs. Thruston and Mrs. Ervine, I conclude to adopt the latter alternative. Declarations of gift by an owner of a chattel, are to be construed most strongly against' him, and are to be defeated only by unequivocal proof on his part, that a present gift was not made. The circumstances in the present case, repelling a present gift, such as that the donor afterwards offered to sell the chattel, or expressed a purpose to make a different gift of the issue, at most show some change or reluctance of purpose to make the gift beneficial, and are too equivocal to rebut the inferences from her positive acknowledgments of the gift. The unwillingness of Mrs. Yancey to demand from her mother the immediate delivery of the slave, although she needed her so much as to make possession desirable on hire, implies no doubt of title, and merely exhibits a becoming filial delicacy.

It is ordered and decreed, that the defendants deliver to the *19plaintiffs the slaves Judy and Noe, and account with, the plaintiffs for the hire of the slaves since the death of Elizabeth Earle.

The defendant appealed, and now moved this Court to reverse the decree on the following grounds :

1. That the evidence of the gift of the negroes by Mrs. Earle to Mrs. Yancey, was not sufficient to justify the decree.

2. That the decree is inconsistent with equity and good conscience.

And, failing in this motion, then he moved for a re-hearing of the cause, on the ground:

That an order may be obtained for a trial of the fact of the gift before a jury.

Young, *Dlford,*for appellant.

*Perry,*contra.

The opinion of the Court was delivered by

Johnston, Ch.

The decree appears to be according to the weight of evidence.

A doubt has been suggested, whether a bill will lie by a mere donee against the donor, to enforce delivery. But no such ground is taken in the appeal; and, if it were, it may be that when the gift is completed, so as to transfer title, the case may stand upon the same footing as a completely declared trust, which a volunteer may enforce against him who created it, though if it were' defective, the Court would not interfere. Decree affirmed, and appeal dismissed.

Dunein, Dargan, and WaRdlaw, CO., concurred.

*Deoree*affirmed.