The bill sets forth that Joseph Kemp died in the year 1821, having first made and published in writing a last will and testament, which was duly admitted to probate by the proper authority, and the executors therein having refused to qualify as such, William Kemp was appointed administrator with the will annexed. In the said will the testator bequeathed as follows: "I give and bequeath to my son William Kemp my negroes Dorcas and Ruth during his natural life, and at his death to his oldest lawful son if he arrive at the age of maturity, but if he should have no son, or he should not arrive to full age, in that case said negroes Dorcas and Ruth with increase to be equally divided between my two sons John (234) and D. W. Kemp." The bill then states that this bequest was assented to by the administrator with the will annexed, and he took possession of the said negroes as a legatee. The bill sets forth that John and D. W. Kemp died during the lifetime of the tenant for life, and that the plaintiff was duly appointed his representative; that William Kemp is dead and the defendant is his executor duly appointed; and that said William during his lifetime sold several of the negroes who were of the increase of the said Ruth and Dorcas, some of whom were carried out of the State and are in possession of persons unknown to the plaintiff; that the legacy to the said John Kemp and D. W. Kemp was a vested remainder, and upon their death carried their interest in the said slaves to their personal representatives. The bill then prays that the defendant may be decreed to deliver over to the plaintiff the whole of the negroes embraced in the said bequest, as the personal representative of the said John and D. W. Kemp, and to account with him for the negroes sold, together with their increase since said sales by the said William Kemp, his testator, and to account with him for their hires, and for general relief.
The defendant by his answer contends that the bequest to John and D. W. Kemp lapsed into the estate of Joseph Kemp, the original testator, from the fact that they died in the lifetime of the tenant for life, and admits that William never had a son, and died as set forth in the bill, and that he is the *Page 182
executor of his will; he further admits that the plaintiff is the rightful representative of John and D. W. Kemp, and that William Kemp during his life sold several of the negroes descendants of the original stock.
The principal question presented in this case was substantially decided by this Court in Lewis v. Smith,
The plaintiff is entitled to a decree for such of the slaves in the possession of the defendant, as are of the original stock or their increase, together with their heirs since the death of William Kemp. It is referred to the master to take an account of the other negroes that were sold by William Kemp. He will enquire and report, whether William Kemp in selling the said negroes disposed only of his life estate, or whether he sold them out and out, or any of them, or whether he sold them, or any of them with a view that they should be carried beyond the limit of this State, or whether he sold them, or any of them, to persons he knew or had reason to believe would carry them beyond the limits of the State. The master will report the sums for which the estate of William Kemp ought to be answerable to the plaintiff for any such sales, upon the principles herein declared.
PER CURIAM. DECREED ACCORDINGLY.
Cited: Hampton v. Benbury,
(237)