Opinion of the Court by

Waiving other questions discussed by counsel, it is first to be settled whether the evidence in this case will authorize a recovery against appellees. The testator had rented his land and hired slaves to his two sons for two or three years previous to 1863, and taken their notes therefor as the evidence shows — and it further shows that said notes had been surrendered to the sons, whether because they were paid, or voluntarily by their father without payment is not very material, but the strong probability from the evidence is that he had determined to give them the rents and heirs. For 1863 he took no notes, and said that on account of the war, and the disturbed condition of the county he had taken no notes from them. Burch, who was asked by- appellant for the *680statements of Isaac Miller in. relation, to the rents for 1863, proves that be said bis father bad' taken no notes for the rent for that year, as they might sow and not reap — and Mrs. Gay proves that in conversation with her father, be told her be bad taken no notes for that year, all be wanted was a support from the farm, and Washington was to furnish that, and in speaking of Isaac said be could not turn him and bis family out in the then unsettled condition of the country, but when things settled be would have to look out.

In view of the fact that no notes were taken from bis sons by testator for rents and, hires for 1863, when for the preceding year be bad uniformly taken their notes, that be spoke of the unsettled condition of the country, and the strong probability from the evidence that be surrendered the notes be bad previously taken without requiring payment thereof. It is very difficult to reach the conclusion that the testator did not permit bis sons to occupy the land and use the slaves without the payment of rent and hire.

Wherefore the judgment dismissing the amended petition is affirmed.