Settle v. Wordlaw, 4 N.C. 371, 1 Car. L. Rep. 371 (1814)

Jan. 1814 · Supreme Court of North Carolina

4 N.C. 371, 1 Car. L. Rep. 371

Settle v. Wordlaw.

This was an action of detinue for a negro slave, Alfred, in the possession of the defendant. The plaintiff claims under the will of Josiah Settle, dec’d, a copy whereof is hereunto annexed, and agreed to be a part of this case. The testator died shortly after making said will; and his widow, Nancy, had the same duly proved and took out letters testamentary. The said Nancy then took the negro woman Fanny, in said will mentioned, into her possession, and continued the possession until she, the said Nancy, died, in 1812. She did not marry a second time. She assented to all the legacies in the said will given. The negro girl, Nanny, mentioned in said will, is the child of said Fanny, and the only one born before the testator’s death. After the death of the testator, and during the life of his widow, the said Nancy Settle, the said Fanny had the following children, that is to say: James, Franky, Hannah and Alfred. The said Hannah lived three years, and died in the life-time of the said widow Nancy. The said Alfred is the slave now in dispute, and is the youngest child of the said Fanny; he was born in the life-time of the said Hannah.

The plaintiff is the testator’s son, David, mentioned in said will. The testator’s son, Benjamin, mentioned in said will, hath legally conveyed his estate held under said will, to the plaintiff.

The Jury found a verdict for the plaintiff; and the counsel for the defendant moved for a new trial. Whereupon the Court ordered the case to be sent to the Supreme Court. If the Supreme Court should think, upon the construction of said will, that the plaintiff is entitled to recover, then judgment is to be given for him; if he is not entitled to recover, then a new trial is to be granted.

Seawell, J.

delivered the opinion of the Court.

From the will referred to in this case, it appears, the testator devised to his daughter Sarah a negro girl, Nanny, and to his wife a negro woman, Fanny, the mother of Nanny. By another clause, the testator devises to his daughter Nancy the first child Fanny should have; and in case Fanny has no other child, devises her to Nancy. By a further clause the testator devises in these words: “That if Fanny should have three children more, that they belong to my two youngest daughters, Sarah and Nancy, two a-piece, including Nanny already given; and all the rest (should she have more than three children, and my said daughters get two a-piece) to be equally divided between Benjamin and David.” In the latter part of the will, the testator makes a further-devisees follows: "That should Fanny have three children, so that my two (evidently meaning two daughters ) get two a-piece, then, at my wife’s death, Fanny and the rest of her children to be the property of David and Benjamin.”

The necessary effect of every devise or legacy is to vest immediately, if not controlled, or otherwise limited. As soon, therefore, as three children were born, they became vested in the daughters, and they then had, according to the expressions of the will, “two a-piece,” including Nanny.

Fanny, and the rest of her increase, then became vested in Benjamin and David; which the after death of one of the issue of Fanny, then living, could not alter or affect; and the widow, to whom Fanny’s issue is devised, by implication for life, being dead, and it being stated in the case that Benjamin hath legally conveyed to the plaintiff, we are of opinion he is entitled to recover.