Coon v. Rice, 29 N.C. 217, 7 Ired. 217 (1847)

June 1847 · Supreme Court of North Carolina

29 N.C. 217, 7 Ired. 217

GEORGE COON, EX’R. &c. vs. JOSEPH RICE.

A testator bequeathed to A. B. as follows: “ I give and bequeath unto my daughter Elizabeth Coon, during her natural life, at the end of which to the only heirs of her body, one negro girl named Riah, this to the aforementioned to them and their heirs forever.” Held, that as this disposition, if applied to land, would have created an ostate tail, it gives the absolute property in the slave to Elizabeth Coon, there being nothing in tho other parts of the will to shew that the words “ heirs of the body” meant “ children.”

Appeal from the Superior Court of Law of Davie County, at the Spring Term, 1847, his Honor Judge Dick, presiding.

This is an action of replevin to recover possession of a negro girl, slave named Rachel. This girl is the child of Riah, a negro woman bequeathed in the will of Joseph Richards in the following words, viz : “ I give and bequeath unto my daughter Elizabeth Coon, during her natural life, at the end of which to the only heirs of her body, one negro girl named Riah, this to the aforementioned to them and their heirs forever.” The testator, Richards, died in the year 1823. About the year 1812, his daughter Elizabeth inter-married with Jacob Coon, the plaintiff’s testator. At the date of Richards’ will, and at his death, there were living two children, the offspring of this marriage, and also several children of said Elizabeth, the offspring of a previous marriage, one of whom is the defendant. There was an assent to the legacy to Elizabeth Coon. The testator of the plaintiff died in 1844, and his wife Elizabeth since, but before the commencement of this suit. The girl Rachel was born after the death of Joseph Richards. Upon the death of the plaintiff’s testator, the plaintiff took possession of the girl Rachel, and hired her out, and Elizabeth Coon became the hirer, and at the expiration of the term of hire, she placed her in the possession of the defendant, where she remained until the death of Elizabeth, and until the commencement of this suit. A verdict was taken by agreement for the plaintiff', subject to the opinion of the Court on the nature and extent of the estate in the woman Riah, given to Elizabeth Coon, by the will of Joseph Richards — the plaintiff contending that it is an estate absolute and without remainder, and therefore that she and her child Rachel belong to the estate of his testator: the defendant contending, that by the will no greater estate than for her life-time is given to Elizabeth Coon in said slaves, and that a remainder thereof vested in her children, one of whom is a defendant, and so that, as against the plaintiff, his taking and detention were lawful.

The Court being of opinion with the defendant, as to the construction of the will, judgment of non-suit was entered, from which judgment the plaintiff appealed to the Supreme Court.

Dodge, for the plaintiff

No counsel for the defendant.

Daniel,, J.

If the property had been land, and Joseph Richards had devised it to his daughter Elizabeth Coon for life, “ at the end of which, to the only heirs of her body, this to the aforementioned, to them and their heirs,” it would in law have been an immediate estate tail, vested in Elizabeth Coon. In looking over the whole will, there is not a word in it, to indicate that the testator intended “ children,” when-he used the words, '■ heirs of the body of Elizabeth Coon.” These words, must therefore, have their legal effect, and in as much as they would have created an estate tail in Mrs. Coon, if the subject matter had been land, they in law create in her an absolute estate in Riah, she, Riah, being personal property. The two cases cited by the plaintiff's counsel, are we think in point for him.

The judgment of nonsuit must be set aside, and a new trial granted.

Pjee Cuiuaiu. Ordered accordingly.