BIRCH, I.
In the year 1827, during the life-time of John Hardeman, Sophia W. Campbell and her husband instituted' against him, in the Howard Circuit Court,' a suit in chancery. The substance of their original and amended bill is, that Mrs. Campbell was the natural daughter, of Thomas Hardeman, who was the father" of the said John, and subsequently made [350]*350a co-clefendant with him. That some time in the year 1821, the said Thomas came to the residence of the complainants, in Boone county, in this State, and after stating to them that he was old, and not longer disposed to give himself trouble with his property or effects, remarked that he owned, amongst other negroes, a family consisting of Manuel, his wife Harriet, and their two children, Julia Ann and Washington. That ho had promised Manuel that he would not separate him from his family, and that his desire was to make such an arrangement as to be able to divide the said family, and another man-servant named Dick,' between Mrs. Campbell and another daughter. He thereupon suggested to the complainants, that as the two chilldren of Manuel and Harriet were worth about as much as a certain negro woman of theirs named Lucinda, if the husband of Mrs. 0. would convey to him that woman, he (the said Thomas) would convey the family of slaves in question to Mrs. C. for life, and afterwards to be divided equally between her children by a former marriage and those of her then marriage with Campbell. The bill alleges that this proposition was readily assented to by the complainants, and that in order that the necessary writings should be drawn up, it was proposed by the said Thomas, and acceded to by the complainants, that they should visit their said father, with or near whom, at his then residence in Howard county, the said John Hardeman resided, and who, in deference to his knowledge in the law, it was agreed should prepare the necessary papers. That -accordingly, about the month of September, 1821, the complainants did make the visit agreed upon, and that the said John (at the request of the parties) did prepare a conveyance of the said family of negroes to himself, as trustee, to hold for the said Sophia and her children, as previously agreed upon, which was executed by the said Thomas, and left in the possession of the said John. The bill further charges, in this connection, that the said Campbell by his deed, conveyed to the said Thomas the woman Lucinda — that Manuel and family were delivered to complainants, and that Lucinda was delivered to Thomas, who received her in full satisfaction for said Julia Ann and'Washington. (In the view we have taken of this case, it is deemed unnecessary to notice the difference between the original and the amended bill in this and some other' respects, our conclusions under the state of the testimony, being the same in either point of view.) The bill goes on to allege, that it was further agreed and understood between the parties, with a view to fulfill the promise alluded to, “not to separate Manuel from his family" during the life of the said Thomas ; that if the complainants should take possession of him and family, and they could not agree with each other, they were to be surrendered to the defendant (John Hardeman) as trustee, to be hired out by him for the best price, and the net proceeds, after deducting necessary expenses, to be paid annually to said Sophia, during her life.
The complainants further state, that afterwards, in the summer of the year 1822, Manuel and his family became dissatisfied and unwilling to live with them — that Manuel ran off from them and went and communicated his dissatisfaction to John Hardeman, who thereupon, in pursuance of the powers conferred upon him as trustee, demanded the restoration of the family, promising in said demand, to comply fully with the requisitions of the agreement by hiring out the negroes, and paying the net proceeds to said Sophia. That the complainants complied with said demand, by delivering the negroes to said John on the 27th day of August, 1822, at which time, in the fullness of their, confidence in him, they did not lift the said agreement, and that they never had a copy of it. That they had made frequent applications for a copy of the agreement, and for payment of the hires, &c., all of which had been refused by said John, who denied having any agency or trust to perform for them touching any of the premises in controversy.
They also charged him with having aided and assisted others in running the negroes into unknown places in Tennessee, so as to cheat and defraud them— that the negro woman has had increase since her return by the complainants, and they call for an account of the hirings, for a discovery of the residence of the negroes, for the displacement of said John, and the appointment of another trustee, and for all other reasonable.and appropriate relief.
The answer of John Hardeman denies that he was ever invested, a® trustee [351]*351with any right, power or authority, to hire out, control or manage said negroes, by virtue of any transfer of them by his father, under any instrument drawn by'himself or any one else. He denies ever having had the negroes in his possession, care or government, or that he has ever hired them out, or received any hire for their services, as charged in the bill, or that he ever mismanaged them, as trustee, or otherwise. He admits that in the summer of 1821, he drew a will for his father, in which he was appointed executor, and also trustee for said Sophia, in regard to the contemplated bequest therein of said Manuel and family (or a part of them), but insists that as liis father was still living, he did not thereby acquire or even then have the power, as trustee, to exercise the duties therein contemplated.
He admits that by a bill of sale, dated on the twelfth .of September, 1821, the husband of said Sophia transferred to his father the negro woman Lucindai for the consideration, as therein stated, of the contemplated bequest in favor of his wife and her children, and he assigns as one of the reasons why his father desired thus to settle the property upon his daughter and her children, that it was to guard her ultimate interest in case a separation, which was at one time portended, might take place between them.
He further states, that in the month of November, 1821, the complainants, whilst removing from Boone, to Olay county, stopped at the residence of his father, where he (the respondent) also then resided, and that at his suggestion, his father loaned to the complainants the family of negroes in question, in order to assist them in opening a new farm, but that he took from Campbell a bond to return the negroes whenever he (the respondent) should request their return to his father ; the reason why they were to be returned at the request of respondent, being that he might and would become the actual trustee, in case his father did not change the provision in his will, which he might and intended to do, should the said Manuel and family become dissatisfied and unwilling to live with tire complainants. He also states that the obligation given by Campbell for the return of the negroes to his father, is the only one he ever had in his possession in regard to the entire transaction between his father and the complainants* and that upon the return of the negroes to his father, that bond was canceled and Campbell notified thereof, and that it is since lost or mislaid.
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BIRCH, I.
In the year 1827, during the life-time of John Hardeman, Sophia W. Campbell and her husband instituted' against him, in the Howard Circuit Court,' a suit in chancery. The substance of their original and amended bill is, that Mrs. Campbell was the natural daughter, of Thomas Hardeman, who was the father" of the said John, and subsequently made [350]*350a co-clefendant with him. That some time in the year 1821, the said Thomas came to the residence of the complainants, in Boone county, in this State, and after stating to them that he was old, and not longer disposed to give himself trouble with his property or effects, remarked that he owned, amongst other negroes, a family consisting of Manuel, his wife Harriet, and their two children, Julia Ann and Washington. That ho had promised Manuel that he would not separate him from his family, and that his desire was to make such an arrangement as to be able to divide the said family, and another man-servant named Dick,' between Mrs. Campbell and another daughter. He thereupon suggested to the complainants, that as the two chilldren of Manuel and Harriet were worth about as much as a certain negro woman of theirs named Lucinda, if the husband of Mrs. 0. would convey to him that woman, he (the said Thomas) would convey the family of slaves in question to Mrs. C. for life, and afterwards to be divided equally between her children by a former marriage and those of her then marriage with Campbell. The bill alleges that this proposition was readily assented to by the complainants, and that in order that the necessary writings should be drawn up, it was proposed by the said Thomas, and acceded to by the complainants, that they should visit their said father, with or near whom, at his then residence in Howard county, the said John Hardeman resided, and who, in deference to his knowledge in the law, it was agreed should prepare the necessary papers. That -accordingly, about the month of September, 1821, the complainants did make the visit agreed upon, and that the said John (at the request of the parties) did prepare a conveyance of the said family of negroes to himself, as trustee, to hold for the said Sophia and her children, as previously agreed upon, which was executed by the said Thomas, and left in the possession of the said John. The bill further charges, in this connection, that the said Campbell by his deed, conveyed to the said Thomas the woman Lucinda — that Manuel and family were delivered to complainants, and that Lucinda was delivered to Thomas, who received her in full satisfaction for said Julia Ann and'Washington. (In the view we have taken of this case, it is deemed unnecessary to notice the difference between the original and the amended bill in this and some other' respects, our conclusions under the state of the testimony, being the same in either point of view.) The bill goes on to allege, that it was further agreed and understood between the parties, with a view to fulfill the promise alluded to, “not to separate Manuel from his family" during the life of the said Thomas ; that if the complainants should take possession of him and family, and they could not agree with each other, they were to be surrendered to the defendant (John Hardeman) as trustee, to be hired out by him for the best price, and the net proceeds, after deducting necessary expenses, to be paid annually to said Sophia, during her life.
The complainants further state, that afterwards, in the summer of the year 1822, Manuel and his family became dissatisfied and unwilling to live with them — that Manuel ran off from them and went and communicated his dissatisfaction to John Hardeman, who thereupon, in pursuance of the powers conferred upon him as trustee, demanded the restoration of the family, promising in said demand, to comply fully with the requisitions of the agreement by hiring out the negroes, and paying the net proceeds to said Sophia. That the complainants complied with said demand, by delivering the negroes to said John on the 27th day of August, 1822, at which time, in the fullness of their, confidence in him, they did not lift the said agreement, and that they never had a copy of it. That they had made frequent applications for a copy of the agreement, and for payment of the hires, &c., all of which had been refused by said John, who denied having any agency or trust to perform for them touching any of the premises in controversy.
They also charged him with having aided and assisted others in running the negroes into unknown places in Tennessee, so as to cheat and defraud them— that the negro woman has had increase since her return by the complainants, and they call for an account of the hirings, for a discovery of the residence of the negroes, for the displacement of said John, and the appointment of another trustee, and for all other reasonable.and appropriate relief.
The answer of John Hardeman denies that he was ever invested, a® trustee [351]*351with any right, power or authority, to hire out, control or manage said negroes, by virtue of any transfer of them by his father, under any instrument drawn by'himself or any one else. He denies ever having had the negroes in his possession, care or government, or that he has ever hired them out, or received any hire for their services, as charged in the bill, or that he ever mismanaged them, as trustee, or otherwise. He admits that in the summer of 1821, he drew a will for his father, in which he was appointed executor, and also trustee for said Sophia, in regard to the contemplated bequest therein of said Manuel and family (or a part of them), but insists that as liis father was still living, he did not thereby acquire or even then have the power, as trustee, to exercise the duties therein contemplated.
He admits that by a bill of sale, dated on the twelfth .of September, 1821, the husband of said Sophia transferred to his father the negro woman Lucindai for the consideration, as therein stated, of the contemplated bequest in favor of his wife and her children, and he assigns as one of the reasons why his father desired thus to settle the property upon his daughter and her children, that it was to guard her ultimate interest in case a separation, which was at one time portended, might take place between them.
He further states, that in the month of November, 1821, the complainants, whilst removing from Boone, to Olay county, stopped at the residence of his father, where he (the respondent) also then resided, and that at his suggestion, his father loaned to the complainants the family of negroes in question, in order to assist them in opening a new farm, but that he took from Campbell a bond to return the negroes whenever he (the respondent) should request their return to his father ; the reason why they were to be returned at the request of respondent, being that he might and would become the actual trustee, in case his father did not change the provision in his will, which he might and intended to do, should the said Manuel and family become dissatisfied and unwilling to live with tire complainants. He also states that the obligation given by Campbell for the return of the negroes to his father, is the only one he ever had in his possession in regard to the entire transaction between his father and the complainants* and that upon the return of the negroes to his father, that bond was canceled and Campbell notified thereof, and that it is since lost or mislaid. He further states, that at the time said bond was given by Campbell for the contingent return of the negroes, he distinctly remembers to have stated to him, that as the consideration for the transfer of Lucinda, as specified in the hill of sale, was’the contemplated bequest of Manuel and family, by said will, to his wife and children, if his father should change the will and not make the bequest, a court of equity would decree a restitution of Lucinda to him, said Campbell.
' He denies all knowledge of any transfer of Manuel and family, by his father to the complainants, as set forth in their bill, as also all knowledge of the number of children (if any) born of Harriet since her return to his father, nor does he know what disposition his father made of them, or where they are. He admits that Lucinda was left at his father’s during the temporary use of Manuel and his family by the complainants, and his answer to the amended bill states ■that she was returned to the agent of the complainants on the 15th of October, 1823,
He asserts, finally, that he recalled the said Manuel and his family from the possession of the complainants at the request and in conformity to the wishes of his father, who afterwards made some disposition of them, in which he (respondent) had nothing to do, and denies all fraud and confederacy, as charged in the bill.
The substance of Thomas Hardeman’s answer concurs with that of John Hardeman. He emphatically denies that he ever transferred, or contracted to exchange with Campbell, the two negro children, Julia Ann and “Washington, for the negro woman, Lucinda, as charged in the original bill of complaint. He denies that he ever transferred to John Hardeman the said children, or any of the negroes, to hold in trust for said Sophia and her children, but admits that in the year 1821, he got his son John to draw his will, in which he willed to John the said family of negroes, in trust for said Sophia during her life, and after her death to her children, but of which will the said [352]*352John never had the possession, it having been retained by him (the testator) with a view to make any change in its provisions he might subsequently think proper.
He states that he made known to the said Sophia, previous to this time, that he would make a will of these negroes, in trust for her and her children, upon the condition that her husband would transfer to him said Lucinda, so as to enable him, in the.division of his property, to give to another daughter the said Lucinda and a negro man named Dick — but that in the transfer to him of the said Lucinda, the consideration of such transfer should be expressed to be the “provision for the said Sophia and her children in his will,” so that if he should ultimately change his mind as to this provision, the said Campbell (her husband) could retain his woman, Lucinda. He further stales that this will, with the said provision as made therein, together with the condition suggested by him to Sophia, was made known to her said husband, who appeared and consented to it, and afterwards, in the month of September, 1831, by writing, 'in which “the provision in the will” was expressed as the consideration thereof, transferred to him the said Lucinda.
He states, further, that he had not intended to give the possession of these negroes to Campbell, but that in the month of November, 1831, the complainants and their family came by his home on their way mo.viug from Boone to Clay county, when John Hardeman, in view of their condition, suggested to him (respondent) the propriety of lending them Manuel and his family, in order to assist them in making a new farm in Clay — suggesting at the same time that it would be the means of ascertaining whether the negroes would be content and satisfied to remain with them, as well as to enable him to judge whether the complainants were worthy of his bounty; and that being thus influenced he loaned the negroes to complainants, and took Campbell’s bond for their return to him whenever requested by John Hardeman, who being the general agent of his father in the transaction at his home, and for the additional reason that the respondent might hot change the provision inserted in his will, it was thought proper to .insert with power to protect either the interests of the respondent, or those of Mrs. Caippbell and her children, against the possible consequences of her husband’s misconduct, &a.
In the view wo have taken of the case as presented by the record, it is unnecessary to embody more of the answer or the amended answer of this respondent, than that the complainants left with him the woman Lucinda at the time he loaned them Manuel and family ; that Manuel and family came home to him by themselves, and that some short time after their return, Lucinda was delivered to John. Tharp, who received her as the agent of the complainant, Campbell.
At the December term of the Howard Circuit Court, in the year 1839, the bill of the complainants being dismissed, they appealed to this court, which reversed the decree of dismissal and remanded the cause. Since then, the suit has been again tried in the Cooper Circuit Court, upon the original and much additional testimony subsequently furnished by both parties, so that there is perceived no discourtesy or irregularity in treating the record now before us, as one which has not heretofore received the consideration of this court.
Whilst the testimony as it now stands is somewhat conflicting and contradictory, it is not deemed to be of a nature either wholly irreconcilable,, or of a character to overturn the explicit denials of the defendant’s answer — the rule being that that can only be done by two witnesses, or one witness and strong corroborating circumstances, implying, of course, in cases like the present (where there are facts and circumstances on both sides); the preponderance of strong corroborating circumstances.
Eor the complainants, some of the witnesses testify to conversations they had with Thomas Hardeman, subsequent to the period when he made the disposition which has been stated of Manuel” and his family, in which conversation he is represented as having given the negroes to his daughter, or to her husband, Campbell. Grant this to be true, and yet, when considered in connection with his answer, and with the other testimony in the case, it could mean nothing more than that that was the disposition he had made of them in his will, which will, however, he had the power either to change, annul or [353]*353destroy at any subsequent period of his life, and which it is hut fair to presume lie did destroy, since it seems from his answer, made during his life-time, that for reasons satisfactory to himself, he had given the property in question to other persons, in Tennessee. At all events, as there is nothing in the record even tending to establish such a will, and as it appears from the testimony that the woman, Lucinda, in consideration of the transfer of whom the provision was to be made in the will, was delivered up to the agent of the complainants after the return of Manuel and family, it cannot be reasonably or equitably contended, that the estate of Thomas Hardeman should be held liable under its alleged provisions, and even less that the estate of John Hardeman can be held liable, either for the mal-performance or non-performance of an alleged trust, which it is clear never had any legal existence.
This brings us to the letter which was written by John Hardeman to the complainant, Campbell, and which, as it constitutes the only or main reliance for charging him as a fiduciary or trustee, it may be proper to copy entire. It i§ dated, op the Qth of August, 1832, and is as follows ;
Í3r. Brother — Mr. Büfhett is iiów down at Slgiin Owens’ and says he has a letter for father, but has not yet delivered it; and as Manuel is also here, I write immediately to you, and send him back with the letter. From the present situation of your affairs, it- is certain you cannot derive any benefit from the negroes, and at the same time carry into effect my father’s design in giving their use to my sister Sophia. His object was to have them kept together, and well treated, old and young. There now seems to be such a difference between you and them that they will not render you any service. _ It is therefore necessary for me to discharge my duty, and carry the trust into effect, by taking the negroes and hiring them out, and whatever sum of money their hire will produce, after having them well fed and clothed, and all expenses deducted, shall be paid to Sophia, as it shall from time to time be received by me. They will be put in a place where they can be together, and be^ well fed and well clothed in the first place, as this was the design and intention of my father in the origin of the trust. He wrote to Sophia some time ago, in answer to a letter from her by Mr. Tharp, which letter Manuel says has not been received by you. Since that time he has altered his opinion as it respects the separation of the children from their parents, and has determined to have nothing more to da with the business, unless you shall think it more profitable to return them, and take Dick and Lucinda, with the power of selling or using them as you may think proper, but this cannot be done unless you agree to it immediately, for in the fall they will be given away to another person who will be here at that time. You will counsel with Sophia and determine what is best, either to take Dick and Luce, and make them wait on you, or to have the others taken from you and put where they can be contented, and the net profits paid to her after they may be received, after deducting their food and clothing and other expenses. Please let me know immediately, and whether you agree to the change or not, bring or send them down as the”expense will be more for me to come up after them. Should you agree to take Dick and Luce, with a bill of sale, you can take them back with you, should you come yourself, or should you send Manuel and his family by some other person, they can take up Dick and his wife to you. My father has tola me to write to you, as he does not wish to be troubled any more about this or any other business, and I must carry his wishes into execution as far as I have the power. My opinion is that you would both be benefited by the exchange, during your lives at least, as your personal labor would not then be so necessary as if the others were taken away and the hire paid to my sister once a year. I hope you are both well, and I am respectfully yours,
Mr. VYm. Campbell. Jons Hakdejiah.
It will be seen that this letter was written at the instance or bidding of Thomas Hardeman, the owner of the slaves and the father of the respondent. From what motive he was influenced in directing the recall of the negroes he had loaned to the husband of his daughter, demonstrated as it seems to be, by the letter which he thus caused to be written by his son (the respondent), that [354]*354lip to tliat period at least he continued to cherish the purpose (as it is apparent ho retained the will), to make these negroes or others, in some manner available to his daughter, may perhaps be gathered from a letter of precedent date, addressed to him by Mrs. Campbell, but proved to be in the hand-writing of a friend, who testifies that he wrote it at her request, and that it contained the substance of repeated conversations between Mrs. Campbell and himself in the presence of her husband. It is dated in Clay county, on the 31st of June, 1823, and runs as follows :
Dear and Reverend Father : With the almost insensible feelings of friendship and gratitude towards a benevolent parent, who in his wisdom has thought it proper (after seriously contemplating the subject) to bestow upon me such a portion of wealth as it has pleased you to do, I feel myself humbly reconciled that your will is my pleasure, and that the situation in which the property stands, I fear will not prove to answer the ends which was intended by you when you made your last will, &c. The reason that I think it may be doubted, is, I very much fear that I shall not by any means be able to keep the negroes that it has been your pleasure to give me, as they both fight Mr. Campbell and me to the very last struggle. Manuel has bit Mr. Campbell’s thumb, and Harriet has bit my thumb, and they say and bitterly swear that they never will stay with me. They both have threatened to take lives, and Manuel has made the attempt, and has once carried his butcher knife with the intent of murder, as he himself said. And as you, father, is getting old, and life is uncertain, the probability is that they may have to be sold, and if so, I wish them to be sold in your time, &c., and then you can, with your pleasure, and also your will, give to me in money, or in other negroes, such a portion as you think proper to do, and then I shall be satisfied ; and if you should die, and the negroes bo sold, and any jar should take place, I should not be satisfied, even if I should get twice as much as you yourself give me. I shall conclude and refer until I shall receive an answer to this. Your unworthy but affectionate child. Sophia W. Campbell.
Thos. Hardeman.
It is thus demonstrated, that up to the period of the re-delivery of the negroes in question, neither Campbell nor his wife even pretended that there was any other arrangement Ilian the one in the wlil, or that that was either final or binding. Such is substantially the admission of their own letter, and such also the substance of their cotemporaneous, continuous and concurrent conversations, as testified to by several of their most respectable neighbors and acquaintances in Clay county. It needs, therefore, but a little attention to dates, and a little reflection upon the nature of the transaction we are reviewing, to perceive how natural it ivas for John Hardeman to speak of himself as a trustee in respect to the property in suit, without being in fact such, except'contingently, under the will of his father, the substance of which the old man still then continued to cherish the purpose to stand by, but ultimately changed that purpose, as he had the sole and unquestionable right to do, as is admitted upon every hand. To assume upon such a state of facts as this, to hold a man responsible as trustee, in respect to property which another could reclaim absolutely and at his pleasure, and which he did reclaim at the instance of the complainants themselves, would be fo affirm the proceedings and decree we are viewing, rendered (we will not doubt) upon the deferential yet mistaken assumption, that as the former decision of this court found the property to have been in the complainants, and the defendant, John, to have been a trustee for their benefit, and that of the heirs of Mrs. Campbell, the testimony subsequently introduced did not sufficiently vary the record of the facts to justify the subsequent Chancellor in disregarding the original finding of our predecessors.
There is much more in the record which might be referred to in concurrence with the conclusion we have arrived at, the letters of Campbell himself, written from Clay county to Thomas Hardeman, on the 25th of May, 1823, in which he expressly disclaimed that he ever had any legal right to the negroes, being but corroborative of the testimony of a number of gentlemen in that county, who testify freely and fully concerning his conversations, and from which it would seem that his only reliance was upon such pro[355]*355vision, as the father of his wife might ultimately make in his will. It may as well, perhaps, be added here, that we perceive nothing in the mutilated letter of the old man, incompatible with this, and therefore nothing which should deprive him of its ultimate benefit.
The whole array of family testimony is sufficiently reconcilable, and the whole case stands thus : Whatever is proven to have been said or written by Thomas Hardeman, as to having given the negroes in question to the complainants, was spoken or written pending his purpose to adhere to the provisions or the substance of the undelivered will of 1831; and whatever was written by John Hardeman, at the instance of his father, was dictated and written under the sanie circumstances. Neither of the complainants were ever imposed upon, or in any sense misimpressed, by what was thus said or written, for both of them, from first to last, are proven to have recognized the authority of the testator to modify or revoke his intended bequest, as he did, and to give to them, or withhold from them, according to the discretion which it seems he subsequently exercised. This being the case, and the negro woman, Lucinda, having been restored to them (as already stated), there remains of the entire transaction nothing whatever to invoke either the interposition of a court of equity or a court of law. The decree of the Circuit Court is accordingly reversed and the bill dismissed — the costs of the first trial in both courts to be paid by the defendants, and all subsequent costs by the complainants.
Judge Ryland, having been of counsel, not sitting.