Wright v. . Harris

MONTGOMERY, J.: The defendant, Jesse Harris, was a former slave of the testator, and the latter, in his will and testament, bore witness to the old servant’s character and devotion, in requesting him to remain with his (testator’s) widow, .until after her death. There are services and kindnesses which these old family servants can and do render to their former owners which none other can, or will render, and the testator understood this as no one else can who never occupied such a relation. The widow survived her *465 husband some years, and when the en’d came to her on the 23rd of December, 1894, this old family servant, the defendant, was' present, faithful to the end; in fact, from the' record it seems that he had never left the old plantation. The testator appears to have been a just man, appreciative of the defendant’s services, and in his lifetime had settled him on fifty acres of his land, and in his will made provision for him in compensation for past services and for those to be rendered by him in future to his widow. He devised his tract of land of twelve hundred acres to his widow, for her life, with remainder to his nephew, the plaintiff, but charged it with an interest in favor of the defendant in the following language: “However, I request that Jesse Harris and Henry Harris,-former slaves of mine, remain with my wife and nephew until the death of my wife, and if they shall remain with them during that time, that they Jesse and Henry shall have, at some suitable place, fifty acres of land each.” The defendant remained with the widow till her death and was faithful to her, and therefore upon her death, under the will, he'became entitled to fifty acres of the twelve hundred acre tract of the testator (which was the only land he owned). He is a fenant in common with the plaintiff of the tract of land as to the fifty acres devised to him in the will, and is entitled to partition. Har vey v. Harvey, 72 N. C., 570; Grubb v. Foust, 99 N. C., 286. The plaintiff ought to have recognized the right of the defendant, under the will, to fifty acres of land in the tract of twelve hundred, and- to have had the same allotted to him in some proper manner. Not having done so, he will not be allowed to eject the defendant from that particular fifty acres of land which he occupies, and which was indicated by the testator during his life time as a suitable home for the defendant, and the defendant will be allowed to remain in the possession of it, until, in the *466 manner prescribed by the judgment of tlie court below, fifty acres of the twelve hundred acre tract shall be allotted by commissioners to him. Redfield Law of Wills, p. 390. The defendant is entitled to such of the crops or proceeds of sale of same as are now in the hands of the receiver, and which were grown on the fifty acres which the defendant has heretofore cultivated. His Honor committed no error in refusing the instructions ashed by the plaintiff, and the judgment of the court below is affirmed. Affirmed.