54 N.C. 257 | N.C. | 1854
William Partin by his last will and testament (among other things) bequeathed as follows: "I also give to my said wife all my negroes, namely, Morning, etc., to be disposed of at her discretion equally (258) between all my daughters, namely, Pernina Partin, etc., except my wife should be of opinion that by the increase of the said negroes, or otherwise, they should be of more value than what my sons have had heretofore, and now given to them from me, then my wish is that my said wife may divide the surplus part of the said negroes equally among all my sons, namely, John, etc., nevertheless she is at liberty finally to sell one or more of said negroes, as she may think proper." *179
Candis Partin, the widow of the testator, mentioned in the above clause as his wife, sold two of the negroes, and the bill alleges that she was about to sell the others, and that they were about to be removed beyond the limits of the State. The bill was filed by the daughters and their husbands, praying for a writ of sequestration, and for a construction of the above-recited clause of the will, so that the interest which the plaintiffs have in this bequest may be ascertained.
The Court accordingly granted the writ of sequestration, and according to the terms thereof the negroes in question were seized by the sheriff (the widow not being able to give the security required by the Court).
By another order of the Court the hires of these negroes were directed to be paid to Candis Partin, the widow.
At a subsequent term of the Court the plaintiffs filed a petition for a rehearing of this latter order, and prayed that it should be reversed. The Court, on argument and consideration of this petition, reversed the order, and thereupon the defendant prayed for leave to appeal to this Court, which was granted. We think his Honor erred in reversing the (259) interlocutory order upon the petition to rehear it. At the time it was entered it was the only order to which the plaintiffs upon the allegations and prayer of their bill were entitled. They do not pretend that they have an absolute or, indeed, any other certain interest in the slaves in question; on the contrary, they say expressly, "that it is doubtful what estate in the said slaves they have under the bequest contained in the last will and testament of William Partin." And they pray only to have the slaves in the possession of the defendant, and the money for which she had sold the others secured. The fiat made by the Judge, and the writ of sequestration issued upon it, were in accordance with the prayer. The plaintiffs nowhere set up any claim to the accruing profits of the slaves during the life of the defendant, but, on the contrary, had permitted her to enjoy them unquestioned for nearly thirty years. Had she given bond for the forthcoming of the slaves, according to the proviso in the fiat and writ of sequestration, she would undoubtedly have enjoyed their hires and profits, and we think that she was equally entitled to them, when the slaves were taken into possession and hired out by the sheriff. The order to that effect made by the Court was therefore proper, and ought not to have been reversed. The order to reverse the decretal order in question will be reversed with costs, and the Court below may proceed in the cause.
PER CURIAM. Decree accordingly. *181
