Declare the bequest of the slaves to the New Garden Meeting to be illegal and void, and that of the residue to the slaves to be also void, for want of capacity in the slaves to take; and that (448) a trust of the slaves and residue results for the next of kin. Declare further, that the letter of attorney made by the plaintiffs to Willie Wright was revoked on 1 October, 1818, and that the defendants had notice thereof before making the compromise with Wright, and that therefore the plaintiff is not bound by the payment alleged to be made to him.
Declare, also, that the decree relied on in the answer of the agents does not bar this suit against the executors, because they have not pleaded the same nor relied upon it in their answers as a bar; and that it does not bar this suit against the other defendants, because they were not parties to the suit in which it was pronounced, and because the executors were not at the time the said decree was made, nor thereafter, trustees for the other defendants, nor otherwise privy to them.
The minutes then directed an account, and gave the plaintiff an election to have the cause remanded to the court below, with liberty to make the wife of the testator a party.
Upon this order the plaintiff elected to have the cause sent back to Guilford, where he made the administrator of the widow a party. It appeared that she died a few days after the testator, without having entered her dissent to the will by which she took both land and slaves.
The master, during the time the cause pended in the court below, made his report, in which he charged the defendants jointly with the net residue *Page 359 of the estate of the testator, $416.93, and interest thereon; with the value of four slaves, which had been carried to distant states, and interest thereon, together with the annual value of all the other slaves and interest thereon — amounting in the whole to $3,621.74.
The case was removed to this Court again, at June Term last, when the defendants excepted to the report:
1. Because the master had disallowed the payment to Wright.
2. Because he had charged them with the value of slaves which had been removed, and interest thereon.
3. Because he had charged them with interest upon the annual (449) value of the slaves.
In support of their exception, the defendants filed a petition to rehear so much of the order made at June Term, 1831, which declared that the payment to Wright had been made after notice to the defendants of the revocation of his power.