The bill sets forth in substance, that Loftin Walton died in 1846, intestate, leaving a widow, Nancy, and the plaintiff, the defendant, Sidney, and the defendant, James, his only children, and that they are the only persons entitled to distribution of the said estate — that (139) administration on the estate of the said intestate has been granted to the defendant, Sidney — and that the said Nancy is since dead, having made her last will and testament, and thereof appointed the defendants, Sidney and James executors. The bill contains the usual prayer for an account and that the plaintiff may be paid what shall be found due to him.
The defendants, in their answer, admit the facts stated in the plaintiff's bill and submit to an account. They aver, however, that sundry advancements were made by their father, the intestate, to the plaintiff, and particularly in slaves, and pray that these may be charged to the plaintiff in making up the account.
It was referred to the clerk and master to state the accounts. In doing so, the clerk and master charged the plaintiff with the value of a slave advanced, which had died in the father's lifetime, and reported accordingly. To this charge the plaintiff excepted, and the cause was then by consent transmitted to the Supreme Court. The defendants have separately filed two exceptions, but they are in substance the same, and may be disposed of together. The first raises this question; a father puts several negroes into the *Page 103 possession of a child, and dies intestate, without having taken back the negroes. One of the negroes died in the lifetime of the father. The Master has charged the child with the valuation of all of the negroes at the date of the advancement. We think it was right to do so, and this exception is overruled. If the negroes increase, the child has the benefit; if a loss happens, it falls on the child. This principle is settled. Meadows v.Meadows, 33 N.C. 148.
Second. The Master does not charge the plaintiff with the value of two of the negroes, who had been put into his possession, (140) and who died in the lifetime of the intestate, because he says, he was of opinion from the testimony, that, after the death of the two negroes, the plaintiff delivered the two, who survived, to his father, who re-delivery them to the plaintiff; and so he concludes, that the plaintiff was chargeable only with the value of the two from the date of the re-delivery. The second exception is, that the plaintiff ought to have been charged with the value of all, at the time they first went into the plaintiff's possession. This exception, we think, is well founded, and it is allowed. The testimony does not establish the fact, that the plaintiff actually did deliver the negroes back to his father, and that he subsequently re-delivered to the plaintiff the two, who survived.
The witness, Smith, says, the intestate told him, he wished to make a new division of his negroes, and, for that purpose, had requested the defendants to surrender those, which had been put into their possession. They refused to do so, and he was much displeased. That the plaintiff, "was willing and had offered to surrender the negroes, which he had received, or had actually surrendered, he does not remember which." "With some difficulty I persuaded him to drop the matter, and he finally acquiesced in my advice."
The witness, Jordan, says, the intestate told him, he wished to make a "re-division of his negroes; that the plaintiff was willing to surrender his, but the defendants refused to surrender theirs." He says he mentioned this to the defendant, James Walton, and told him "his father said, Robert was willing to surrender or had surrendered his, to which he replied, the reason why Robert is willing to do so, is, because some of his negroes are dead and he will gain by having them thrown back and a new division made."
He also says, "he heard the defendant, Sidney Walton, admit just now, that one of the negroes (put in the plaintiff's (141) possession) was sent to his father's during his lifetime and died, having sent there to be nursed, Robert having no wife."
This is the substance of all of the testimony. It falls very far short of supporting the conclusion of the Master. The burthen of proof was upon the plaintiff, and the testimony not only fails to establish *Page 104 the allegations of an actual surrender and re-delivery, but the inference is, that, inasmuch as the proposed new division could not be made, by reason of the refusal of the defendants, a surrender on the part of the plaintiff was unnecessary, and, therefore was not made. The fact that one of the negroes was sent to the intestate's house for the purpose of being nursed, and died there, does not support the allegation of a surrender.
This exception is allowed, and there must be a reference to reform the report.
PER CURIAM. Ordered accordingly.
(142)