Speight v. . Gatling

Hah., Judge. On the argument of this case, an objection was made, because Francis Speight’s representative- was not a party. But upon an inspection of the *8 record it appears, that after the death of Henry Speight, administrator of Frauds Speight, letters of administration de bonis non were granted to Thomas Sanders, and the suit has been revived against him. The first question upon the merits of the case is, whether the property in dispute passed hy the residuary clause of Joseph Speight’s will, to Frauds and Henry Speight. In the first clause the testator “lends unto my beloved wife Ann Speight, during her natural life, one half of the land and plantation whereon I now live, with one half of the improvements thereon; also five negroes, Jenny. Henry, Stephen,Rose, and Pris,” with various other articles. In a subsequent clause ho says, “ I give and bequeath unto my beloved wife Ann Speight my riding chair and harness, to her 'and her heirs forever.” It is observable, that in all the other clauses where the test..tor gives property, he uses the same words of limi tation, “ to them and their heirs forever.” This is pretty satisfactory proof, that the negroes given to Ann were, like the land, given to her for life, and so far the remainder in them is undisposed of. The testator in a subsequent clause gives to his grandson Joseph Freeman twelve shillings, in full of his part of the estate, to him and his heirs forever. He does the same to John Freeman and David Freeman. He also gives to his granddaughter Ann Freeman one negro named Luke, to her and her heirs forever, in full of her part of his estate. It is pretty clear, that the testator did not intend that these last legatees should have any interest in the remainder of the negroes, given to his wife Ann for life. Nor can it be supposed, that he intended, as to that property, to die intestate. But I am of opinion, that it passed to Henry and Frauds Speight under the following residuary clause: “It is my will and desire, that all the remainder of oy estate, of every nature and kind whatsoever, shall fee :• old, and nine months credit given to the purchasers; the money arising therefrom to go to pay all my just debts aiiisi funeral charges; and if there should be any remainder, for it to be equally divided between rny two sons, Francis Spdght and Henry Speight, to them and *9 their heirs forever.” This clause is sufficiently comprehensive to embrace it. daves,'honestly made by an exe-wKmgprmcSplet may be set aside upon the bill or a legatee, who ^ ignorance of his ri£htsIt is argued, that it is incredible that he intended the remainder in those slaves should be sold to pay his debts. I answer, that whether he intended it or not, he certainly subjected that interest to the payment of his debts ; and his executors (who were Francis and Henry Speight) might sell it if they pleased. And if they paid the debts, they need not sell any of it. It was given to them, subject to the payment of the debts, and until it was exhausted, no other legacy could be touched for that purpose. I therefore conclude, that the property in question devolved upon, and became vested in Francis and Henry Speight, by the residuary clause in the will of their father, Joseph Speight. But it is stated, and relied upon, that the division was made amongst the four children of the testator by consent. This allegation. I think, has not been established. No doubt James Gatling acted honestly in making the division, and that he made it under legal advice. And this might have ° . Leen tlic means, in some measure, of silencing tlic claimants, who were probably ignorant of their rights. The testimony of John Gatling and William Gatling would seem to show, that the division was made by con sent", but the testimony of Lewis Eure and Hillory Wil-ley, who were the commissioners that made the division, clearly prove that some of the plaintiffs were dissatisfied with it; and if others were silent, it might be and probably was, that they were ignorant of their rights. I therefore cannot consider the division to be a bar to the plaintiff’s rights under the will. A report has been made in this case by the clerk, in which he values the negroes claimed by the plaintiff, as they were valued in the year 1819, when the division took place. He states, that no evidence was offered, either as to their present value, or as to their hire or annual value. As the plaintiff was entitled at the time tlic division took place, and as the negroes were thereby withdrawn from him, I see no objection to taking their then value. *10 Another objection is, that part of the valuation Avas made upon a slave, that died shortly after the division. It is to be observed, that the slaves are not produced by the defendants in discharge of themselves. IftheyAvere, it would probably appear that their increase would balance that loss. Or if there Avas no increase, the hire or annual value of the negroes might exceed the interest; so far as to cover it. I therefore think, that the valuation of the slaves and property claimed by the plaintiff,. which was made at the division, should be the basis of a decree against the defendants. Per Curiam — Decree accordingly.