Powell v. Cook, 15 N.C. 499, 4 Dev. 499 (1834)

June 1834 · Supreme Court of North Carolina

15 N.C. 499, 4 Dev. 499

Jesse Powell, et. al. v. Lemuel Cook.

Whore one put a ibmato slate in the possession of another, and by his will subsequently made, bequeathed that slave to the same person for life, and proceeded, “after her death I give the some slave, and her increase to” &c,. Held, that issue of the slave bom between the date of the will, and the death of the testator, did not pass to the legatee for lifei The ease of Jones v Jones, (Conf. Rep. 310, J approved.

Detinue fot-' a male slave, named Willis.

The case was submitted to Mahtin Judge, at Wake, on tire last Fall circuit, on the following facts.

Dempsey Poxvell in the year 1818, put into Hie possession of Jhnelia Cook, the wife of the defendant, a negro girl pained Ferebe, who continued in the possession of the plaintiff during the life of Powell, the defendants usjng her and her issue, as their own. Dempsey Poxvell by his will bequeathed as follows : “ I lend unto Ame-“Ua Cook, (half sister of my wife,) during her life time, “ one negro girl named Ferebe, now in her possession, “and after her death, I give the said negro girl, and “her increase to Polly Merril,” and thereof he appointed the plaintiffs- executors. After the making of the will, and before the death of the testator, Ferebe had issue the slave- Willis, claimed in the writ. Jhnelia Cook was still alive, and if the issue of Ferebe did not puss to her for life, then judgment was to entered for the plaintiff — otherwise for the defendant.

His Honor being of opinion for the defendant, judgment was entered accordingly, and the plaintiffs appealed.

W. II. Haywood for the ’plaintiffs.

Badger for the defendant.

DaNiex, Judge.

As the will did not begin to operate until the death of the testator, no right to the slavo Ferebe was vested in Amelia Cook, until that time. The slave Ferebe only, and not her children born between the date of the will and the death of the testator, passed Id Amelia Cook for her life, (Jones v Jones, Con.Rep.310.) The subsequent words made use of by the testator in Hie same clause of the will which gives the slave Ferebe, to Amelia Cook for life, which words are as follows :— And after her (Amelia Cook's) death, I give the said negro girl Ferebe, and her increase to Pollij Marrit, &c.” — do not, by necessary implication or intendment, carry the increase of Ferebe as well as herself to Amelia Cook for life. To say they did, would, in our opinion be adding words to the will, rather than construing it, which we have no power to do.

We think that the judgment of the Superior Court must be reversed, and that judgment must be rendered for the plaintiffs.

Per Curiam. — Jubgmewt reversed-.