Witherington v. Williams, 1 N.C. 134, 1 Tay. 134 (1798)

Sept. 1798 · North Carolina Superior Court

1 N.C. 134, 1 Tay. 134

Witherington, Executor of Ferguson, versus Ann Williams.

Plaintiff claiming under a joint tenancy which was severed, can recover only the proper proportion.

TROVER for a negro;

not guilty pleaded. The defendant was the widow of one Ferguson who was killed at the battle of the Allemance, leaving two children.

The legislature in order to make some provision for his family, directed that one hundred pounds should be deposited in the hands of Richard Caswell to purchase negroes for the widow and children. Two negroes were purchased, one of whom died; the other was given by the defendant, after her marriage with Williams, to her son, the plaintiff’s testator.

Taylor for the Plaintiff.

Davie for the Defendant.

Haywood, J.

Mr. Caswell was trustee for the widow and children, to make the purchase; but having done so, the trust was at an end, and the property vested in them as joint-tenants. The joint-tenancy was severed as to the widow, by her intermarriage with Williams; as to the children, by the act of 1784, and each held a third in severalty. The gift by the defendant to the plaintiff's testator transferred no property, because her third belonged to Williams upon the intermarriage; and at the time of the gift to his representatives.

The plaintiff therefore is entitled to recover but one third.

Judgment accordingly.