As the will did not begin to operate until the death of the testatrix, no right to Tena vested in William Jones till that time; she remained the property of the testatrix, who was entitled to all the profits arising from her; consequently her children, the negroes in question, were the property of the testatrix at her death; and as they were not specifically bequeathed by her, form part of the residuum of her estate, and are included in the bequest to Ann, the plaintiff, of the remainder of the testatrix’s property.— Judgment for plaintiff.
Jones v. Jones, 1 N.C. 310, 1 Cam. & Nor. 310 (1801)
June 1801
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North Carolina Court of Conference
1 N.C. 310, 1 Cam. & Nor. 310
Anne Jones vs. Wm. Jones and Hodge Larkin, Executors of Margaret Jones, deceased.
On the 9th day of April, 1787, Margaret Jones made her last will and testament, in which were the following bequests, to wit: —" I give and " bequeath to my beloved son, William Jones, " one negro, named Tena. Should my son Wil-" liam die without an heir, in that case all the " property herein bequeathed to fall to his sisters, " if living.
" I give and bequeath to my beloved daugh-" ter, Ann Jones, one negro boy named Harry, and all the remainder of my property, with " Dick.”
After the execution of the said will, and before the death of the testatrix, the woman Tena (bequeathed to the said William Jones) had two children, to wit, Moll and Jude. The testatrix died in the year 1791, without altering or revoking her said will. Thereupon the defendants caused the same to be duly proved, qualified as executors thereof, and took into their possession the said Moll and Jude.
Ann Jones, the plaintiff, filed her petition against the defendants, and claims the said Moll and Jude, as part of the residuary property of the testatrix, which had not been before specifically given away.
*311And the question is, whether Ann Jones is entitled to the negroes Moll and Jude, by virtue of that clause of the will which gives her the remainder of the testatrix property—Or is William Jones entitled to the same, by reason of the bequest of the negro woman Tena, the mother of Moll and Jude.