This was a suit originally brought in the county court of Bedford, in chancery, by the appellees, Smithson Davis, Susan Davis, and Josiah Harrison, administrator of his deceased wife Rachel Davis, against Thomas Stewart and Tirzah his wife administratrix of her first husband Richard Davis deceased, and the appellant William Dickerson. Richard Davis died, intestate, in the year 1784, when slaves were real property; and the plaintiff, Smithson, claimed as his heir at law, and the other plaintiffs as his distributees, a slave named Lucy, and her increase now numerous, three *of which were then in the possession of the defendant Dickenson, who claimed the same under a mortgage and purchase from his co-defendant Thomas Stewart, and the rest were in the possession of Stewart, though they also were under mortgage to Dickenson. The object of the bill was, to recover of the defendant Dickenson, such of the slaves as he held in possession, and the profits thereof since they had come to his possession, and of the defendants Stewart and wife, such of the slaves as Stewart yet held, and the profits which he had taken and enjoyed.
It was agreed by all parties, that the slave Lucy in question, was originally a part of the estate of William Morrison, who died as early as the year 1761; and that he, by his will (according to the construction put upon it, acquiesced in and conformed with all parties concerned, though that construction seemed somewhat questionable) devised and bequeathed all his slaves and moveables to his wife for life, with a power to her, with the concurrence of his executors, to appoint the same to and among his children. And the plaintiffs alleged, that Mrs. Morrison, with the concurrence of the executors, made an appointment of the slave Lucy, to the testator's daughter Tirzah, then the wife of their father Richard Davis, and delivered her to him, and that he held the possession of her till his death, and that, therefore, she and her increase appertained to his estate. On the other hand, the defendants alleged, that though Mrs. Morrison, the tenant for life, had made a verbal loan of the slave Lucy to Davis during his life, and he had held possession of her under that loan, yet in fact, no appointment was made by Mrs. Morrison during Davis's lifetime; that after his death, he reclaimed this slave which she had lent him; that, in 1796, after her daughter Mrs. Davis had married her second husband Stewart, Mrs. Morrison and James Higginbotham, the surviving executor of her husband, united in a general deed of appointment of that testator's slaves among his children, and thereby, for the first time, appointed the slave Lucy and her increase to Mrs. Stewart, and delivered *the property to her husband: that thus, these slaves were the property of Stewart.
[Note: Partial transcript].
