Leary v. Nash, 56 N.C. 356, 3 Jones Eq. 356 (1857)

Dec. 1857 · Supreme Court of North Carolina

56 N.C. 356, 3 Jones Eq. 356

M. N. LEARY, Executor, against S. W. NASH, and others

Children of a female slave directed by will to be liberated, bom after the making of the will and before the death of the testator, are not entitled to their freedom.

Cause removed from the Court of Equity of Cumberland county.

The bill was filed to obtain a construction upon the will of Solomon W. Nash.

One of the questions presented to the Court is, whether the defendant John, who was born after the making of his father’s will, could take any thing by law, he not having been in any manner provided for in the said will.

The clause of the will, upon which the nest question arises, is as follows :

Item 0. “I further leave my negro slave woman Venice, to serve my daughters ten years from the time of my death, and after the expiration of that time, I desire her to be freed ; and if she wishes to remove to any free State, I wish her to be permitted to do so; and if she may be permitted to remain in North Carolina, that she may enjoy all the privileges that ean be, or may bo, allowed by law to slaves left by their masters or mistresses to be freed.

“ The way I desire Venice to serve my daughters is, for her to be hired out for the temí' of ten years, and the proceeds of the same to be equally divided amongst them.”

At the.time of the making of. the will, the woman Venice had no child, but after that event she had two-children, Jack and Festus.

The executor enquires whether the woman Venice is entitled to her freedom, and if so, upon what terms, and also-, whether Jack and Festus, children of Venice, born after the making of the will, but previously to. the death of the testator, are entitled to be emancipated.

The children of the testator, who are- legatees in the will, and John, born as above stated, after the will was made, are made parties defendant, who answered, but their answers contained nothing affecting the questions treated of in the opinions of the Court.

Banlcs and Troy, for the plaintiff.

Strange and Balter, for the defendants.

Pearson, J.

1. The defendant Jobn, who was born after the making of the will, and before the death of the testator, is entitled to a filial portion, according to the provisions of the statute.-

2. The slave Venice has her election either to leave the State and be thereby emancipated, or to remain here as a slave. As to this there will be an enquiry.

3. The two children of Venice born after the making of the will, and before the death of the testator, are slaves. There is no ground upon which they are entitled to their freedom. Before the death of the testator the will did not take effect; it was revocable and had no operation until that event. In Caffee v. Davis, 1 Jones’ Eq. Rep. 1, commented on in Cromartie v. Robinson, 2 Jones’ Eq. Rep. 218, the child was born after the death of the testator. In Wooten v. Deaton, 8 Ire. Eq. Rep. 66, the child born after the making of the will, and before the death of the testator, was held to be entitled to his freedom by force of the words “together with all future issue and increase,” which had the effect of taking that case out of the well-settled general.rule. Here, there are no such words.

Pee CueiaM, Decree accordingly.