We are of opinion that the negro slaves mentioned in the first clause of the will, after the death of Cue widow, belonged to the children named in the second , “ „ ... ,, _ Glauco j but that the representatives of Polly Branch and Rebecca Branch must, be made parties, before complainants can have a decree for a distributive share of their estate,
Bynum v. Branch, 5 N.C. 132, 1 Mur. 132 (1806)
June 1806
·
Supreme Court of North Carolina
5 N.C. 132, 1 Mur. 132
Bynum & Parker, Administrators of Branch, vs. Bowen Branch, Administrator de bonis non of John Branch, deceased.
From Halifax.
A. bequethedtwo negro slaves by name to his widow (hiring hie ; Ic in a subsequent lause ot his will he bequeathed «the Heroes there in mentioned, Bat, Iving, 8tc (naming-them, hut omitting the names <X the two t;!ven to 3iis widow cluing life) to ■five of his ebiMron/” “ that the *133above tiial# afte not heretofore given away-shall he equally divided among his said children/5 Tll€u,c-negroes m the first clause oro included m the second clause of the will and 'the t0 chiMven— two of the children ha-YntLtate' ^f^tion of the na» groes was made, the next oCkin cannot have n decree for distribution of their shares of the said negroes, against the administrator de bonis non cum tes-tamento annexo of the testator until the representatives of the deceased children are made parties.
*132John Branch, by his last will, gave to his wife Mary >c one negro fellow by the name of Curtain, also one negro girl by the name of Queen, during her natural life, and no longer and by a subsequent clause in his will he directed “ that the negroes therein mentioned, Patty, King, &e. (not mentioning either Curtain or'Queen) should be divided between his children, X'olly, Bowen, Thomas, Norman and Rebecca, when they should arrive at age or marry, adding «• that the above that are not heretofore given away, should be so divided.” The Testator appointed his son Burrell Branch and two others executors of his will, who after his death'proved the same and undertook the execution thereof: and Benjamin Brand), the survivor of the said Executors, having died intestate, administration de-bonis non with the will annexed, was granted to Bowen Branch, the defendant in this case. Polly and Rebecca, two' of the testator’s children ami legatees as aforesaid, died unmarried and intestate, leaving four brothers, Burrell, 'Bowen, Thomas and Norman, and one sister named Elizabeth, then surviving. Administration of the estate of Burrell Branch, deceased, was granted to' Bynum and Parker, who brought this bill in Equity against Bowen Branch, the Administrator de bonis non of John Branch, deceased, and therein claimed on behalf of their intestate his distributive share of
*133the negro slaves aforesaid, as one of the next of kin of his deceased sisters, Polly Branch and Rebecca Branch. Upon the hearing of (he cause two questions arose which were referred to this Court: 1st. Whether the negro slaves Curtain and Queen, (mentioned in the first clause of the will of John Branch, deceased,) bequeathed to the widow during life, are included in the second clause of the will ? 2d. Whether the complainants can sue for the shares of * . Polly and Rebecca Branch, and claim a distributive part thereof on behalf of their intestate, without having the ad- , tninisirafors of said Polly and Rebecca before the Court ?