By the Court.
Lumpkin, J.delivering the opinion.
I will consider the grounds in the motion for a new trial: in their order.
1,2. Because the verdict was against the law and weigh;-: of evidence in the case, and against the charge of the Court.
The evidence in the case was conflicting: rejecting the evidence of the two witnesses, brother and sister, who are proven to have been too young to testify understandingly, as to the facts to which their evidence relates, one of them being three years old only at the time; and the verdict is in accordance with the preponderance of the proof. And as to its being contrary to the law and the charge of the Court, such was not the opinion of the Judge, who presided at the trial; nor is it our, opinion.
3, 4, 5, 6. The next four grounds may all be considered together.
*83We think the Court was right in not permitting the defendant to read in evidence the appraisement and returns of sates; of property of the estate of Wm. W. Walker, deceased, by hi» administrator and administratrix. The object of this proof was of a negative character; that is, by showing that the negroes in dispute were not inventoried and sold, with the rest of his slaves, by his legal representatives, it might be inferred that they knew they belonged to old James Walker, and not their intestate. It would be going very far, we apprehend,in any case, to allow the title to valuable property to be taken from minors by an act of omission of this sort, whatever the motive might be. But considering the relationship which existed between these parties, we hardly think the conduct of the representatives should weigh anything against the title of W. W. Walker’s estate to these slaves. The administrator was the son, and the administratrix the daughter-in-law of James Walker, who was an aged man at that time. At the end of the year, after the death of his son, William W". he'claimed the negroes, and took them home with him, notwithstanding they had been in the peaceable possession of his son for about eleven years before his death. Policy, for fear of offending him, as well as filial respect, might well have induced these parties so far to acquiesce, as not to resist his will, and thereby rouse the old man to anger and resentment by inventoring and offering for sale, these slaves with the rest of the property of the intestate. Besides, the widow, was a woman who but imperfectly understood her rights; and naturally looked to Allen M. Walker, her brother-in-law, and co-administrator, to do whatever the law required. And that is not all, she intermarried again in about fourteen years after the death of her husband, which, by operation of law, abated her letters of administration; and again, Allen M. was living with his father and might have supposed that by continuing in the joint possession of these negroes, upon his father’s place, as he did, that this would be a sufficient protection of his brother’s title. Under all these cireum*84stances we do not think that any inference should be made to the prejudice of W. W. Walker’s estate, on account of the failure of the representatives to assert their intestate’s title to> this property.
It may be that Allen M. Walker connived at the claim of his father. His interest was all on that side. It would be going very far to allow such proof to weaken even, the title of W. W. .Walker’s child, or children, to these negroes.
As to the appraisement of Nathaniel F. Walker, as-the executor, it is very clear that this evidence was properly excluded. James Walker’s will was made in 1828, when W. W. Walker was in possession of the negroes. He continued in possession until his death, in 1834. sWhat if James Walker did undertake to dispose of these negroes by his will ? It amounts to nothing. There is no evidence that the contents of the will ever came to the knowledge of W. W. Walker; much less that he sanctioned or approved of them. Indeed, until the death of James Walker, in 1S49, and the publication of his will, no one knew of the testamentary claim thus attempted to be asserted, and this suit was brought within four years from that time.
[7.] The last ground is, that the Court erred in charging the jury that if James Walker and Allen M. Walker colluded together to defraud the estate of W. W. Walker out of these negroes, that the statute of limitations did not begin to run until after the fraud was discovered.
We see nothing wrong in this charge. The heirs of W. W. Walker, deceased, should not suffer by the fraudulent misconduct of their trustee, and it is not a good reply to say, that he is personally reliable to his cestui que trust. Why should not the fraud be made to effect the conscience of his confederate? Shall his title, originating£n covin with the trustee, be protected ? The tendency of our legislation, as to land titles, is strongly opposed to this doctrine. And it would seem to me that where the question is between an orphan child on the one side, and the orignal parties to the transac*85tion on the other, no interests of third persons being involved, there can be no doubt but the principle was correctly stated by the Court.
Being satisfied with the verdict, and seeing no error, either in rejecting evidence or the charge of the Court to the jury, we do not feel constrained to overrule the discretion of the Court in refusing to grant a new trial in this case; and consequently affirm its judgment.
Judgment affirmed.