41 N.C. 528 | N.C. | 1850
Mills Taylor died in 1840, intestate, and leaving the following children: James P. Taylor, Elizabeth Jane, wife of John Gill, and Frances, the wife of William P. Forrest. Elizabeth (529) died after her father, and John Gill, her husband, administered on her estate; and William P. Forrest was then duly appointed administrator upon the estate of Mills Taylor, and took into his possession all of the personal property belonging to it. The intestate, at the time of his death, owned a number of slaves, which were divided among the children.
The bill is filed against William P. Forrest and his wife, Frances, and against said Forrest as administrator of Mills Taylor, by the other children and those who represent them, for an account and settlement of the estate. It charges that during his life Mills Taylor lent to William P. Forrest a negro boy by the name of Stephen, whom the said Forrest subsequently sold in the lifetime of Mills Taylor for $1,050 cash, which he appropriated for his own use, and for which he is chargeable, together with interest. It further alleges that the defendant Forrest has exhibited a large account against the estate for the board of Elizabeth Jane Taylor, the intestate of the plaintiff John Gill, which, it charges, is unjust, as the said Elizabeth was, during the time she stayed with Forrest, a visitor at his own request; and if she was a boarder, the charges are too high.
The answer admits the sale of Stephen, and alleges that he was given to the defendant Forrest by his father-in-law, Mills Taylor, when he was quite young and of little value; and that he is an advancement to him, and that, as such, he is ready and willing to account for him. It further alleges that for the time board for Elizabeth is charged she was *368 not a visitor with the defendant, but, he being a teacher, she was placed by her father with him as a pupil, for whose board he promised to pay; and that he did, from time to time, furnish the defendant with provisions of different kinds, for which he is duly credited in the account filed by him.
(530) Upon the coming in of the answer, replication was taken, and upon the hearing a decree for an account was made and a reference to the master had to state the administration accounts of the defendant Forrest. The master made a report, which is excepted to by both parties.
In arguing the exceptions the parties agreed to bring before the Court for the present only those relating to the negro Stephen and the board of Elizabeth Jane.
Exception 11 is as follows: That the master, in and by his said report, hath certified that he finds that the negro boy Stephen was lent to the defendant and his wife, Frances, by Mills Taylor, the defendant's intestate, and has charged this defendant with the sum of $1,050 for which the said negro was sold by the defendant; whereas the master ought to have certified that the said negro Stephen was given by the said Mills Taylor to the defendant and his wife, Frances, and ought to have charged this defendant with only the value of said negro at the time he was delivered by the said Mills Taylor to the defendant and his wife, Frances, and as an advancement to them. This exception must be allowed. It is not difficult to see how the master was led into the error committed. All the testimony cited by him as sustaining his view are conversations and declarations of Mills Taylor, held and made by him after the delivery of Stephen and in the absence of the defendant. This testimony is inadmissible. This point is fully established by Cowan v. Tucker,
But another and much more important question is still to be disposed of. Stephen was sold by the defendant Forrest before the death of Mills Taylor. Was he, therefore, within the meaning of the proviso to the act of 1806, in the possession of the donee so as to render it an advancement? The language of the act is: "Provided, that when any (531) person shall have put into the actual possession of his or her child
or children any slave, and the said slave shall remain in thepossession of such child or children at the time of thedeath of such person,"etc. The case is very clearly not within the letter
of the act. Is it within its meaning? We are told that if we adhere to the words alone of an act, we adhere to the bark. And if, in cases arising under the proviso to the act of 1806, we adhere strictly to the words, not one-half of them can take effect. In this case the delivery, the gift, was made to Forrest. He was not the child of Taylor; and yet was it ever doubted *369
such a gift came within the act? And why? Because it is certainly within the meaning of the proviso. We are at liberty to look to the meaning of the act; and that meaning is the law, when discovered. What, then, did the Legislature mean in using the words, "and the said slaves shall remain in the possession of such child at the time of the death of such person"? It means that the parol gift shall take effect as an advancement in all cases where the parent dies intestate withoutresuming the possession. Such is the opinion of the Court in Stallingsv. Stallings,
When Cowan v. Tucker was a second time before the Court,
Exception 13 of the defendants is overruled. We are of opinion, from the proofs in the case, that the price allowed by the master for the board of Elizabeth Jane was a fair and proper one; and that she was not a visitor at the house of the defendant, but a boarder. This embraces the plaintiff's second exception, which is also overruled. *370
Exception 14 of the defendant is sustained, as the conclusion of the master was arrived at through an error as to Stephen.
PER CURIAM. Decree accordingly.
Cited: Shiver v. Brock,
(533)