Patterson v. High, 43 N.C. 52, 8 Ired. Eq. 52 (1851)

Dec. 1851 · Supreme Court of North Carolina

43 N.C. 52, 8 Ired. Eq. 52

JAMES N. PATTERSON Adm'r, &c. vs. PEYTON HIGH, Ex’r &c.

On the death of a feme covert, entitled to dioses in action, administration should be taken out on her estate, lor the purpose of paying her debts, if there he any, and for distributing the residue of her assets as the law directs.

The husband has a right to such administration, but he may assign hia right to another.

It has long been the established law in this State, that the increase of slaves belongs to the remainder-man, and not to the tenant for life of the mother.

The cases of Timms v Potter, 1 Hay. 234-, Glasgow v Flowers, 1 Hay. 233, and Erwin v Kilpatrick, 3 Hawks. 436, cited and approved.

Cause removed from the Court of Equity of Orange county, at the Fall Term, 1851.

The plaintiff, in his bill, set forth, that John B. Shaw died in the year 1818, having left a last will and testament, of which, among others, he appointed John Shaw, who alone qualified, and the defendant, Peyton High, executors; that by the said will he bequeathed as follows : I lend to my wife, Frankey Shaw, during her natural life, or widowhood, ten negroes,” (naming them); and. in another clause. “ I give to my daughter, Polly Morgan, after the death or marriage of my wife, one negro woman, named Isabel, to her and her heirs forever.” The' bill further set forth, that the said testator directed, in and by his said will, that, after the death of his wife, a large portion of his property should be divided among his children, of whom the said Polly was one. The bill further set forth, that the said Polly Morgan was the wife of Lemuel Morgan, who is still living, and that she died after the death of the said testator, and in the lifetime of the said Frankey Shaw, the wife of the said testator, and that, at the request of the said Lemuel Morgan, administration on her estate has been duly granted to the plaintiff. The bill further alleges, that the said Franky Shaw, above mentioned, died in the year. 1851, having, during her life, held possession, by the consent of the executors, of the property bequeathed to her by the will of the said John B. Shaw, including, among others, the said woman Isabel, who has now a large increase, born since the death of the said testator. The bill further alleged, that, all other persons named as executors in the will of the said John B. Shaw, being dead, the defendant has qualified as the surviving executor, and has taken into' his possession the said woman, Isabel, and her' increase, a'S Well as the rest of the estate, to which the plaintiff’s intestate was entitled, under the said will, in remainder after the death of the said Franky, and that he refuses to pay' or deliver the same to the plaintiff. The bill concludes1 with the usual prayer for an account and relief.

The defendant in his answer admits all the facts set forth in the bill, but he avers that the said Polly Morgan left no children, and he is advised, that, in that event, all the estate in remainder bequeathed to her by the said will, not having vested in her during her life, passed to her surviving brothers and sisters, and that, therefore, the plaintiff has no claim.

The cause was set forth for hearing upon bill and answer and, by consent of the parties, transferred to this Court.

Norwood, for the plaintiff.

Saunders and G. W. Haywood, for the defendant.

Nash, J.

The plaintiff is entitled to the decree which he asks’,' John B. Shaw died in the year 1816, and by will gave to his wife, Franky Shaw, during her life or widow* hood, a number of negroes, .among whom was a woman by the name of Isabel. By a.subsequent clause, he gives her absolutely, after -the death or marriage of his wife, to his daughter Polly Morgan. The bequest, then, of Isabel was of a life estate in her to the widow, with a remainder to Polly Morgan. This was a vested remainder, and in no way dependent upon Polly Morgan surviving her mother. It cannot be necessary .to .cite authorities to prove this.

By the clause, the last but one in his will, the Testator directs, that nine of the negroes given to his wife, together with other ..property, shall be sold and the proceeds divided' among all his children. The widow, Mrs. Franky Shaw, died in the year 1851, and, immediately thereafter, the sale was made by tire defendant, High, as Executor of the will of John B. Shaw. This was also a vested remainder in the children of the testator, and the interest of Polly Morgan vested in her the possession, only awaiting the falling in of the life estate of Mrs. Morgan, who died in 1830 ; her husband, Lemuel Morgan, is still alive. Upon the death of a feme covert, her chases in action are to be reduced to possession by her personal representative, for the purpose of .paying her debts, if there be any, and for distributing the residue of the assets, as the-law directs. Her husband is entitled to take out administration upon her estate, and, after discharging all just claims upon it, holds the balance in his own right, the law deeming him her next .oí-kin, or not compellable to make distribution, 2nd BI. c. 515.

Upon the death of Mrs. Morgan, it was the right of her husband, Mr. Lemuel Morgan, to administer upon her estate : but, during the existence of the widow of John B. Shaw, it was not necessary, for there was nothing to administer upon. As soon, however, as that event took place, the necessity arose, and the present plaintiff, with the consent of the husband, was duly appointed. He is entitled to a decree for the negro woman, Isabel, and all her increase since the death of John B. Shaw. It has long been the established law of this State, that the increase of slaves belongs to the remainder-man, and not to the tenant for life of the mother; Timms v Potter, 1 Hay. 234, Glasgow v Flowers, 1 Hay. 233, and Erwin v Kilpatrick, 3 Hawks, 456. He is entitled to an account of the hires of the negroes since the death of Mrs. Shaw, and is also entitled to receive from the defendant, High, the share of Mrs. Morgan, in the sales of the slaves and other property,in which the widow of the testator had a life interest.

It must be referred to the Clerk to take an account of the hire of the negroes from the time specified, and also of the amount of the sales made by the defendant.

Per Curiam, Decreed accordingly.