| Ala. | Jan 15, 1846
Upon the merits, this case is clearly with, the defendants in error. It is satisfactorily proved by many witnesses, that the deceased remained in possession of the^ slaves until his death, exorcising ownership over them. There appears, it is true, to have been a rumor in-the neighborhood, that the slaves belonged to the sons, who claim them, and declarations of the father are proved, which might lead to such a conclusion; hnt these are not sufficient to divest his title. Nothing is proved, which in law would amount to a gift. The deeds of gift said to have been executed in 1831, are not produced, or proved, and justify the inference that if produced, they could not be sustained. The fact that this conclusive proof, if it exists, is not produced, weakens the force, and throws discredit upon the inferior testimony adduced of the same fact, if indeed it does not render it entirely valueless. But independent of this consideration, there is no proof of a gift of the slaves. The declarations of the deceased upon the point, were contradictory at different times, nor does it appear that he ever parted with the possession, or the right to exercise control, or dominion over them, during his life, and there could not therefore be a valid gift of them at common law.
Conceding that the jurisdiction of Chancery, is concurrent in testamentary matters with the Orphans’ Court, and that the court which first obtains jurisdiction, will be entitled to keep it, there are many cases in which the Court of Chancery may take jurisdiction, after the proceedings have been commenced in the Orphans’ Court, and having obtained jurisdiction for one purpose, retain it for all purposes, and make final settlement. See the case of Leavens v. Butler, 8 Porter, 399, where this question is fully considered.
In all cases where trusts are to be executed, or a discovery of assets is wanted, the power of the Orphans’ Court is inadequate to afford the necessary relief.
This appears to be a case peculiarly proper for the interference of Chancery, nearly all the assets being withheld by the administrator claiming them as his own, by a secret gift, and we feel entirely satisfied, that such a case is made by the bill, as authorized the Chancellor to interpose, arrest fur