Wall's Guardian v. Coppedge

Roland, J., delivered the opinion of the court. Prom the above statement it will be seen, that the main question in this case arises on the will of Jno. R. Wall, the father of the defendants in error who were plaintiffs below. The plaintiff in error, the defendant below, claims the slaves sued for in right of his late wife Janette Coppedge, who had been the wife of said Jno. R. Wall. Her right was derived under the following clause of the will of her former husband, Wall, namely: “I desire that my wife, Janette, shall have the use and benefit of all my estate, both real and personal, so long as she shall remain my widow, or until my son Octavius Wall, shall arrive at the age of twenty-one years, at which time, I wish my personal estate to be equally divided among my widow, my son Octavius and my daughter Ella, saving to my widow her dower.’» Under this will it appears, that Janette Wall took possession of the property, real and personal, and used it up to the time of her marriage with the plaintiff in error. After her marriage, under proceedings in the county court of Ray county, partition of the slaves and other personal property was had between Janette and the two children (the plaintiffs below.) The slaves in suit were allotted and partitioned to Janette, then the wife of the plaintiff in error, and the slaves have been in his possession up to the bringing of this action. Janette Coppedge died before the suit was brought. What estate did Mrs. Janette Coppedge take in these negroes under the will of her former husband? It is the opinion of this court, that under the will, Mrs. Janette Wall [452] was entitled to the slaves absolutely, as soon as they were allotted to her as her equal part thereof. But if there were any doubt as to the estate which she derived, under the will, to these negroes, there can be none under the statute of this State, then in force concerning dower. The will was dated 7th December, 1843, and the record shows it was recorded the 6th February, 1844; between these dates then, John R. Wall died. The Rev. statutes of 1835 were then in force and the act concerning dower governs this ease. By the second section of that act, the widow of a husband dying, leaving a child or children, became entitled absolutely to a share in the slaves and other personal property belonging to the husband at the time of his death, equal to the share of a child of such deceased husband, after the payment of debts. Dower act 1835, sec. 2. “Where the husband shall die, leaving a child or children, or other descendants, the widow shall be entitled, absolutely, to a share in the slaves, and other personal estate belonging to the husband at the time of his death, equal to the share of a child of such deceased husband after the payment of debts.” Here the husband died leaving two children only, and the widow became entitled to one third part of the slaves and other personal estate after debts were paid. She and the two children were entitled to the whole, each to one third, and this absolutely. So it is plain, that either under the will, or under the law, she was entitled to a third part, there being but two children absolutely. All that was said about election, or making choice of an estate for life, has nothing to do with the partition in this case. Her dower or her share was allotted to her, under this statute, and that share became her own in the negroes absolutely. This settles the case, and will settle it finally between these parties. The plaintiffs below have no right, either under the will, or under the statute, to the share of the slaves allotted to their mother. These were her own absolute property, and, as such, became the property, upon her marriage, of her husband, Coppedge, he having them in his possession from and after the marriage. It will not be necessary to notice the admission, as evidence, of Mrs. Janette Coppedge’s declarations further than to say, they were not competent evidence and should have been excluded. The other judges concurring, the judgment below must be reversed.