17 N.C. 5 | N.C. | 1831
The defendants, in their answer, admitted the principal allegations of the plaintiff. They stated that their intestate not only administered upon the estate of Henry Speight, the elder, but that he also took out letters of administration de bonis non, et cum testamento annexo, of the testator, Joseph Speight, under which he had, by the advice of counsel, and with the consent and approbation of the plaintiff, distributed the property given to Anne, the widow, for life, "among the distributees of Joseph, the testator."
This division was made in 1819, under an order of the county (7) court, and the report of the commissioners was filed with the answer, from which it appeared that they had divided the negroes left by Joseph Speight to his wife for life, equally between all his grandchildren, perstirpes, excluding the Freemans, who he had declared should receive no further part of his estate. The several acknowledgments of the receipt of their shares, signed by the persons among whom this property was divided, were also filed with the answer. By consent, the clerk was directed to take an account of the value of the negroes, and of their annual profits.
In his report the clerk stated that no evidence had been filed with him as to the value of the slaves or the amount of profits received from their labor. He, therefore, had been governed by the valuation made by the commissioners, who divided them in 1819, and had allowed nothing for *16 the profits of their labor, but charged the defendants with interest upon that valuation, and that he had rejected a claim made by the defendants for an allowance on account of one of the negroes who died in 1820. On the argument of this case an objection was made because Francis Speight's representative was not a party. But upon an inspection of the record it appears that after the death of Henry (8) Speight, administrator of Francis Speight, letters of administration de bonis non were granted to Thomas Sanders, and the suit has been revived against him.
The first question upon the merits of the case is whether the property in dispute passed by the residuary clause of Joseph Speight's will to Francis and Henry Speight. In the first clause the testator "lends unto my beloved wife, Anne Speight, during her natural life, one-half of the land and plantation whereon I now live, with one-half of the improvements thereon; also five negroes, Jenny, Henry, Stephen, Rose, and Pris," with various other articles. In a subsequent clause he says: "I give and bequeath unto my beloved wife, Anne Speight, my riding-chair and harness, to her and her heirs forever." It is observable that in all the other clauses where the testator gives property he uses the same words of limitation, "to them and their heirs forever." This is pretty satisfactory proof that the negroes given to Anne were, like the land, given to her for life, and so far the remainder of them is undisposed of. The testator in a subsequent clause gives to his grandson, Joseph Freeman, 12s., in full of his part of the estate, to him and his heirs forever. He does the same to John Freeman and David Freeman. He also gives to his granddaughter, Anne Freeman, one negro named Luke, to her and her heirs forever, in full of her part of his estate. It is pretty clear that the testator did not intend that these last legatees should have any interest in the remainder of the negroes given to his wife, Anne, for life. Nor can it be supposed that he intended, as to that property, to die intestate. But I am of opinion that it passed to Henry and Francis Speight under the following residuary clause: "It is my will and desire that all the remainder of my estate, of every nature and kind whatsoever, shall be sold and nine months credit given to the purchasers; the money arising therefrom to go to pay all my just debts and funeral charges; and if there should be any remainder, for it to be equally divided between my two sons, Francis Speight and Henry Speight, to them and their heirs forever." This clause is sufficiently comprehensive to embrace it.
(9) It is argued that it is incredible that he intended the remainder *17 in those slaves should be sold to pay his debts. I answer that whether he intended it or not, he certainly subjected that interest to the payment of his debts; and his executors (who were Francis and Henry Speight) might sell it if they pleased; and if they paid the debts, need not sell any of it. It was given to them, subject to the payment of the debts, and until it was exhausted no other legacy could be touched for that purpose. I, therefore, conclude that the property in question devolved upon and became vested in Francis and Henry Speight by the residuary clause in the will of their father, Joseph Speight.
But it is stated, and relied upon, that the division was made amongst the four children of the testator by consent. This allegation, I think, has not been established. No doubt, James Gatling, acted honestly in making the division, and that he made it under legal advice. And this might have been the means, in some measure, of silencing the claimants, who were probably ignorant of their rights. The testimony of John Gatling and William Gatling would seem to show that the division was made be consent; but the testimony of Lewis Eure and Hillory Willey, who were the commissioners who made the division, clearly prove that some of the plaintiffs were dissatisfied with it; and if others were silent, it might be and probably was that they were ignorant of their rights. I, therefore, cannot consider the division to be a bar to the plaintiff's rights under the will.
A report has been made in this case by the clerk in which he values the negroes claimed by the plaintiff as they were valued in 1819, when the division took place. He states that no evidence was offered either as to their present value or as to their hire or annual value. As the plaintiff was entitled at the time the division took place, and as the negroes were thereby withdrawn from him, I see no objection to taking theirthen value.
Another objection is that part of the valuation was made (10) upon a slave that died shortly after the division. It is to be observed that the slaves are not produced by the defendants in discharge of themselves. If they were, it would probably appear that their increase would balance that loss. Or if there was no increase, the hire or annual value of the negroes might exceed the interest, so far as to cover it. I, therefore, think that the valuation of the slaves and property claimed by the plaintiff, which was made at the division, should be the basis of a decree against the defendants.
PER CURIAM. Decree Accordingly.
Cited: Saunders v. Gatlin,