4 D.C. 431 (C.C.D.C. 1834), 2604, Chapman v. Fenwick

Docket Nº:2604[1]
Citation:4 D.C. 431, 5 F.Cas. 477
Party Name:CHAPMAN v. FENWICK.
Attorney:Mr. Key, for petitioners, W. L. Brent, for respondent [Robert Fenwick],
Judge Panel:CRANCH, Chief Judge (THRUSTON, Circuit Judge, absent).

Page 431

4 D.C. 431 (C.C.D.C. 1834)

5 F.Cas. 477

CHAPMAN

v.

FENWICK.

No. 2604 [1]

Circuit Court, District of Columbia.

March 1834. [2]

This was a petition for freedom [by two negroes, Eliza and Kitty Chapman] under the will of Mrs. Frances Edelin, and the act of Maryland of 1796 (chapter 67, § 13).

Mr. Key, for petitioners, cited two cases decided by this court, namely, Thompson v. Clarke, June, 1817 [Case No. 13,951], and Fidelio v. Dermott, June, 1807 [Id. 4,754]; Gainsborough v. Gainsborough, 2 Vern. 252; 2 Fonb. 291.

W. L. Brent, for respondent [Robert Fenwick], cited and relied upon the case of George v. Corse's Adm'r, 2 Har. & G. 1.

CRANCH, Chief Judge (THRUSTON, Circuit Judge, absent).

Mrs. Frances Edelin, the then owner of the petitioners, on the 2d of November, 1825, made her will, in which she says, ‘ After my debts and funeral charges are paid, I devise and bequeath as follows: I give and bequeath to my nephew John B. Edelin the store-house and lot,’ & c. (describing it). She then goes on to make sundry other devises of real estate, the last of which is to her nephew Richard James Edelin, of a small house and lot, ‘ with the proviso that the negroes which are hereinafter mentioned to be free to live in the back room of the said house.’ She then bequeaths to the same nephew a mulatto man named Henry, and to her nephew John B. Edelin, she gives a negro boy named John; to her brother George, a black man named Bill; and to her niece Eliza Queen, a negro girl named Harriett, and a locket and ring. Then follows this clause: ‘ Item, negro woman Letty, her daughter Kitty, a mulatto, with her three children, to wit, Eliza, Robert, and Kitty Jane, with future increase, and an old woman named Lucy, I do hereby declare them free at and after my death; and they shall have the right to live in and occupy the backroom in the house and lot I have given and bequeathed to my nephew, Richard James Edelin. To the two older negro women I give them and bequeath ten dollars a year to each of them as long as they live; and ten dollars a year, during two years after my death, exclusive of the year in which I die, to mulatto Kitty.’ She then charges the land, devised to her nephews, with annuities of ten dollars to each of the negroes, Lucy, Letty and Kitty. Exclusive of the specific devises and bequests, her estate was insufficient to pay the testatrix's debts; and it is admitted that the personal estate alone, exclusive of the value of one petitioners, was also insufficient without the aid of the real; but that the real and personal estate, exclusive of the value of the petitioners, was sufficient. From the death of the testatrix, in November or December, 1825, until July, 1833, the petitioners have been suffered by the executor to go at large, and act as free. On the 16th of July, 1833, upon the ex parte petition of the executor, stating that the testatrix, by her will, directed that certain of the negroes contained in the inventory, should be free, after her death; that he has since discovered that there will not be assets enough to discharge her debts, and praying that the negroes may be sold; the orphans' court ordered the executor ‘ to sell all the personal estate.’ By the executor's account, settled with the orphans' court on the same 16th of July, 1833, in which he is charged with these negroes, valued at $805, the balance against him appeared to be $745.90, which, by a subsequent account rendered on the 12th of November, 1833, he appears to have accounted for to the satisfaction of the orphans' court; so that, if the petitioners obtain their freedom, he will have overpaid the sum of $752.27. But the executor had, between July and November, 1833, sold the petitioners to the defendant, Robert Fenwick, so that, if the petitioners obtain their freedom, the executor will have to refund the purchase money to the defendant, and look to the real estate.

The question for the decision of the court is whether, under these circumstances, the manumitting clause of the will be, or be not, ‘ in prejudice of creditors?’ By the act of Maryland of 1796 (chapter 67, § 13), it is enacted, ‘ That it shall be lawful for any person or...

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