Appeal
from circuit court, Colbert county; H. C. Speake, Judge.
Action
of ejectment by Lucy G. Campbell and others against Sarah E
Noble and others. From a judgment for defendants, plaintiffs
appeal. Reversed.
This
was a statutory action of ejectment brought by Lucy G
Campbell, Rachel Crutchfield, M. H. Yerger, Mrs. Kirby Lane
Woofie Hogan, Sarah Hogan, C. Mattie Andrews, and Jennie L
Burke against Thomas B. Bickley. On application of Sarah E
Noble, it was shown that Thomas B. Bickley, the original
defendant, was her tenant, and the said Sarah E. Noble was
made a party to the suit. The lands sued for were described
in the complaint as follows: "The south half of section
(24) twenty-four, township (4) four, range (11) eleven; the
east half of the northwest quarter and north half of
northeast quarter of section 24, township 4, and range (11)
eleven; the southeast quarter of the north east (1/4)
quarter, and also the northwest 1/4 of the northeast 1/4 of
section (11) eleven, township (5) five, and range (11)
eleven,-being in Colbert county." The plaintiffs
introduced in evidence the will and codicil of Arthur S.
Hogan, and it was shown that this will and codicil was
properly executed and duly admitted to probate in April,
1850.
The
will was in words and figures as follows:
"Considering
the uncertainty of this mortal life, of sound mind (I thank
my God for the same), I make this my last will and
testament. Item the 1st: I have given and delivered to my
daughter Matilda, wife of James Rucks, now deceased, five
negroes and three thousand dollars in money. I have given
and delivered to my four grandchildren, Arthur, James, and
Henry Rucks, and Malvina, now wife of William Yerger, the
following named negroes, to wit, Petre, Castle, Agy,
Phillis, Reuben, Polly, Willis, Abraham, Monroe, Louisa,
and Gilford, one horse, and two mules; one hundred dollars
to William Yerger; and seventy-three dollars in money to
each of said grandchildren. Item the 2d: I have given and
delivered to my daughter Harriett Goodall, now widow, one
negro woman, Milly, also five thousand one hundred and
seventy dollars in money. I have loaned and delivered unto
my said daughter Harriett the following named negroes, to
wit, George, Jerry, Harry, Caroline, Drew, Whitwell,
Bowling, Susan, Julia, Pleasant and Charlotte, during her
lifetime; also the plantation on which she now resides in
Smith county, state of Tennessee, including the island in
the Cumberland river, together with the north bank of the
said river, at Carthage, for a ferry landing. After her
death, I give all to my two grandchildren, Rachel and Lucy,
and their heirs forever. Item the 3d: I have given and
delivered to my son William B. Hogan nine negroes and
twenty-five hundred and fifty dollars in money. I loan to
my said son, for the benefit of his wife and children, and
all that they may hereafter have, the plantation where he
now resides, containing one section; also the following
named negroes, to wit, Timson, Huger, Joe, Cintha, Neb,
Elizabeth, Jack, Ann, Redick, and James,-to be equally
divided between all of his heirs after his death. Item the
4th: My son Samuel died without heirs. Item the 5th: My
granddaughter Elizabeth Winter, whenever she shall marry,
she shall take into possession one-half of the plantation,
one-half of the brick house lying in Franklin county, state
of Alabama, also eighty acres of land lying at the foot of
the mountain, one-half of the negroes named in the item
next below. If the said Elizabeth shall have an heir or
heirs, in that case, after the death of her father and
mother, she shall have the whole of the plantation and
house and lot in the town of Tuscumbia, together with the
balance of the negroes, she having first to set apart or
provide for the genteel support of her sister Josephine
during her life. If the said Elizabeth die, and leave no
heir or heirs of her body, my will is that all of the
property she may acquire by this will shall be equally
divided between all of my children living and such of my
grandchildren whose parents may have died; and if she
should die and leave an heir or heirs, I give it to them
forever. Item the 6th: I had given four negroes to Sally
Ann, now wife of T. W. Winter. I now loan to my said
daughter the plantation on which she now resides on in the
county of Franklin, state of Alabama, also eighty acres of
land lying at the foot of the mountain, a house and lot in
the town of Tuscumbia, and the following named negroes, to
wit, Hannah, Violet, Francis, Nina, Henry, George, Charity,
Anderson, Dempsey, Traser, Edy, Sarah, Wilson, Malvina,
Lunsford, Simon, Austin, Maria, and two mules. When her
daughter Elizabeth marries, the one-half of the above-named
negroes shall be delivered to her, and one-half of the
plantation, and one-half of the brick house on said
plantation. I do hereby appoint T. W. Winter guardian and
agent for his wife and his daughter during life. Item the
7th: I loan unto my daughter Amanda M., wife of W. E.
Walker, the plantation on which I now reside, containing
one section; also the following names negroes, to wit,
Hannah, Buck, Eliza, Phillissia, Madora, Louisa, Charlotte,
Seniora, Charles, Isaac, Jane, Jack, Jim, Nancy, Mary,
Victoria, Milly, Anthony, Margarett, John George, Lucy,
Caty, Juny, Charles, Attamont, Sandry, Trar, Lenry,
together with their increase, one mare, five mules, some
cattle, and household furniture. I do hereby appoint W. E.
Walker guardian and agent for his wife and children during
his life. After his death, and the death of his wife, the
above-named property to be divided equally between all of
his heirs. It is understood that W. E. Walker is acting as
my agent at the present time, and all the crops are to go
to the use and benefit of his wife and children. Item the
8th: My children all know that my woman Edy came into my
family by their stepmother, who, at her death, requested me
to fix it so that the said woman, Edy, might have her time
and labor at my death, and I promised her I would do so.
Should the said woman, Edy, have a child or children, I
give all of her increase to my grandson Preston Hogan. I
leave to the said woman, Edy, her time and labor during her
life. I give to the said woman, Edy, one mare, one cow and
calf, one sow and pigs, and fifty dollars in cash during
her life. I appoint my son William B. Hogan my sole
executor.
"Given
under my hand and seal this twenty-second of January,
eighteen hundred and forty-nine. No security to be
required." [Signed] Art. S. Hogan. [Seal.]"
The
codicil of the will was as follows:
"I,
Art. S. Hogan, in the will above, having disposed of the
most of my estate, do make this codicil and dispose of the
balance of his estate as follows: The two negro boys
William and Jerry I give to my four grandchildren, and to
be equally divided between them as in item the first in the
will. I add nine hundred dollars to item the second in my
will to Harriett Goodall, which will fall to me from the
estate of my brother James Hogan. This sum is to be laid
out in buying land adjoining her down the river, if it can
be bought at twelve dollars per acre; if not, to be laid
out in negroes, and in either case to descend as the
property in the aforesaid will in item the second. To item
three in my will I add one negro boy Hampton, and five
hundred dollars to my son W. B. Hogan. To item the sixth in
my will I add my large Catholic Bible, to my daughter Sally
Ann Winter, she being already well provided for. To item
the seventh in my will, the woman Tennessee to be added to
my daughter Amanda M. Walker, and to be under the same
restrictions as is provided in said item; also one sorrel
mare. I loan to my woman Edy, as named in my will, one
house and lot in the old town of Aberdeen, No. Twenty. She
is to have complete control of the house and lot during her
life. After her death, I give the house and lot to my
grandson Preston Hogan forever. W. B. Hogan is to have the
house built, and is to have one hundred and ninety
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