Smith v. The State. always be given in evidence. He goes no further than to con trovert the general position, and says the confession would not be strengthened by the surrender of the party making it, as it yet would be liable to suspicion, inasmuch as the confessing party might afterwards disprove it. But when the other facts and circumstances connect the party with the act, and the confession is made under circumstances which repel the suspicion of any motive, I can see no reason why a doubtful crime may not be thus fixed on the confessing person, though the fact of that confession may tend to exculpate another, to whom the circumstances equally point as the guilty person. But it is said there was no confession here, to charge Sam; true it is not a confession in terms, but when the attending facts are looked to, there is some ground at least to make it proper to go to the jury, for them to determine whether it is sufficient to enable them to say it was an admission of his own guilt. It seems to fall within that class of presumptive evidence which grows out of the acts of a party when charged with the transaction. [Best. Pres. Ev. 325, § 251.] A somewhat curious case in illustration of the rule is given in Willis on Circum. Ev. 101.] An individual was suspected of a robbery, after a lapse of four years, and an officer was sent to make the arrest. He asked the accused, without informing him of the object of the inquiry, where he resided three years past, and received a direct answer, but when he immediately afterwards inquired where the party resided four years before then, the individual fell down in a swoon. There is, I think, no rational doubt that facts like these, and confessions or declarations which connect themselves with the circumstances attendant upon the crime, are proper evidence, whether to prove guilt upon the guilty, or the innocence of others, by showing where the guilt lies. On this point I think the court erred, and therefore dissent from the opinion just pronounced. NOTE. The prisoner was pardoned by the Executive. Fellows, Wadsworth & Co. v. Tann, &c. FELLOWS, WADSWORTH & Co. v. TANN, BY HER NEXT FRIEND, ET AL. 1. Semble, where the father gave personal property to a daughter by a deed, who was a feme sole, but who afterwards married, and together with her husband retained possession under the deed for more than twenty years, it will be presumed, (in the absence of an intention to defraud,) against the husband, or his creditors, that the property was not the daughter's, but was the father's at the time of the gift. 2. Where property is given by a father to his daughter, who was a feme sole and competent to take it, a court of equity will not allow her subsequent marriage to impair her rights, merely because a trustee was not interposed. 3. A father gave to his widowed daughter, "and the heirs of her body," by deed, a female slave, who he provided should be under her control and employment, in the most profitable way, for the use and support of herself and "her heirs," during their lives; after her death it was directed that the property should be divided "among her heirs." In a short time after the gift, the daughter took possession of the slave, who, together with her increase, have for more than twenty years been treated as the separate property of the daughter and her children; though the daughter married very soon after acquiring the possession: Held, that the deed invested the daughter and her children collectively, with interests which the creditors of the husband could not divest, as it respects the children, through the medium of any forum, and as it respects the daughter, (his wife,) not by levy and sale under execution against his estate; if the husband, in virtue of his marital rights, has an interest in the slave, and her increase, or the profits accruing from their employment, a creditor must proceed in equity to subject it to his judgment; further, that as the daughter has become covert, a court of equity may appoint a trustee in whom the legal estate shall be vested, so as to support the purposes of the deed. Writ of Error to the Court of Chancery sitting at Livingston. THE defendants in error filed their bill in May, 1844, setting forth that James Daniel, the father of Jane Tann, one of the complainants, executed a deed on the 17th June, 1820, by which he gave a female slave named Winney, then fifteen years old, to his daughter, Mrs. Tann, then a feme sole, and widow of Hugh Barnett, deceased, " and the heirs of her body," " on the following terms, that is to say: I leave the said girl to Jane Barnett, 66 Fellows, Wadsworth & Co. v. Tann, &c. during her, the said Jane's natural life, forever, and the heirs of her body, with this condition, that the said girl Winney shall be under the entire control and management of my said daughter Jane, in the most profitable and useful way, for the use and support of her, the said Jane, and her heirs during their natural life. After the death of the said Jane Barnett, the said negro girl Winney shall be equally divided among the heirs of the said Jane Barnett." Shortly after this deed was executed, Winney went into the possession of Mrs. Tann, and has been treated ever since as the separate property of herself and children. In July, 1820, Mrs. T. intermarried with her present husband, Alfred Tann, then residing in Greene, and shortly thereafter the deed in question was recorded in the County Court of that county. Winney had a numerous increase, the names of all her children are mentioned in the bill. It is further stated, that A. Tann has now some half dozen children residing in his family, who are dependent upon these slaves for their maintenance and education, as he himself is very poor, and is unable to assist them. The plaintiff's in error, in February, 1840, recovered a judgment against A. Tann, in the County Court of Sumter, for the sum of $1745 61, and $64 67, costs of suit, on which execution has issued, and been levied upon the slaves described in the bill, by the sheriff of Sumter, who will sell the same unless restrained by injunction, and the object of the settlement upon the complainants will be defeated, the slaves removed, &c. The plaintiffs and defendant in execution, are all made defendants to the bill, an injunction prayed, and a reference "to the Master, to appoint a suitable trustee to act under the said trust, during the life of the said Jane;"that the sheriff may be ordered to surrender up the said slaves on the complainant's entering into such bond, and complying with such terms as your honor may require;" and for such other and further relief as may be proper. An injunction was granted accordingly, and an order made to re-deliver the slaves by the sheriff upon the conditions proposed by the bill. Afterwards the defendants moved to dismiss the bill for want of equity, which motion was overruled. Fellows, Wadsworth & Co. answered the bill, avowing their entire ignorance of the matters alledged therein, and praying that the complainants may be required to prove the same, with the Fellows, Wadsworth & Co. v. Tann, &c. exception of the indebtedness of A. Tann, which they explicitly affirm, and pray that their answer may also be regarded as a demurrer, and for cause say that the bill does not disclose a case which entitles the complainants to the relief they seek. Subpoena having been served upon the defendant Tann, and he failing to answer, the bill as to him was taken pro confesso. Elizabeth Condy was examined as a witness for the complainants, and testified that she saw the deed under which they claim executed by the donor, James Daniel, and attested by the subscribing witnesses, John Emmerson and Dixon Loggins, about the time it bears date. The donor she knows is dead, and she has understood that the witnesses are also dead. When the deed was executed in 1820, the donee was a widow, named Jane Barnett; she has since married Alfred Tann. Witness knows the slave Winney, that she has been, and still is, in A. Tann's possession-thinks she has had ten or eleven children, some of whom have died-does not know the names of the younger children, states the names and ages of the elder. Winney was in possession of Mrs. Tann when the deed was executed, and has been ever since, with the exception of one year, when she was hired out. Sarah Cates was also examined at the instance of the complainants, and testified that she had known the woman, Winney, eighteen or nineteen years; that she had been, and still was, in the possession of A. Tann; was the mother of eight children, seven of whom are living, the names and ages of whom she states. The Chancellor was of opinion that the allegations of the bill were supported by the proofs in the cause; that it was the intention of the donor, as indicated by the deed, to give to Mrs. Tann such an interest in Winney and her increase as could not be subjected to the payment of her husband's debts. It was accordingingly adjudged, that the exccution of Fellows, Wadsworth & Co. be perpetually enjoined in respect to the property in question, and that the Master report a suitable person for trustee to carry into effect the purposes of the deed, &c. W. H. GREEN, for the plaintiff in error, insisted that the bill wants equity, and should have been dismissed by the Chancellor -Further, that the final decree is erroneous. [O'Neal, Michaux Fellows, Wadsworth & Co. v. Tann, &c. & Thomas v. Teague, 8 Ala. 345, is à direct authority to show, that the wife has not an estate to her separate use, and that the slaves are subject to sale for her husband's debts. There is nothing to show that the words "heirs of her body." were not used in the sense in which they are usually understood in law. They must therefore be taken as words of limitation, and not of purchase; and the wife being the first taker, will have the absolute estate. R. H. SMITH, for defendants in error, contended, that the words "heirs," and "heirs of the body," are used in the deed under which the complainants claim as synonymous with children; that the deed contemplated an enjoyment of the gift by the children, during the life of the mother, Mrs. Tann; that this intent being consistent with law, should be upheld by a Court of Equity. [1 Mylne & K. Rep. 316; 2 W. Bla. Rep. 1010; 10 Bing. Rep. 198; 5 Ves. Rep. 399; 8 Cond. Eng. 67; 2 Hawk's Rep. 472.] The intent of the donnor cannot be carried out, unless Winney and her children are permitted to remain in Mrs. Tann's posses sion. [Clancey on Rights, &c. 256, 446-7-8.] The husband acquired no right to them, could not sell them himself, and they cannot be disposed of by an execution against him. [8 Yerger's Rep. 33; Harp. Eq. Rep. 243.] It was the intention of the donor to settle an estate upon his daughter and her children, which would not be subject to the marital rights of her husband. So far as it related to the latter, the estate was for her separate use. If the deed cannot operate at law in favor of the wife, a court of equity will perfect the settlement. [2 McC. Ch. Rep. 368, 372; 3 Lit. Rep. 13; 2 Dana's Rep. 437.] The answer does not deny any allegation of the bill, and the testimony very satisfactorily proves every thing that is material. COLLIER, C. J.-The proof very satisfactorily establishes the execution of the deed about the time it bears date, its attestation by the subscribing witnesses; that Winney and her children have been, and were in Mrs. Tann's possession when levied on, the names of the children, &c. If the testimony is defective in any thing, it is in the omission to prove that the donor was the owner of Winney at the time the deed was executed. But the |