Cresswell v. Emberson

• Decision Date: 31 August 1849
• Citation: 41 N.C. 151,6 Ired.Eq. 151
• Court: North Carolina Supreme Court
• Parties: DAVID CRESSWELL et al. v. WILLIAM EMBERSON.

6 Ired.Eq. 151

41 N.C. 151

DAVID CRESSWELL et al.

v.WILLIAM EMBERSON.

Supreme Court of North Carolina.

August Term, 1849.

A. bequeathed a slave to his wife for her life, and, after her death, to be emancipated. Held, that though the provision for the emancipation of the slave was void, yet the slave did not belong absolutely to the wife, but, after her death, went to the next of kin, or passed by the residuary clause, if there was one.

Cause removed from the Court of Equity of Iredell County, at the Spring Term 1848.

In the year 1831. Adam Moore made his will. in which he gave to his wife, Hannah Moore, the whole of his property, after the payment of his debts, during her natural life, except such part as she might choose not to retain, and he directed such part to be sold by his executors, and the proceeds to be put out at interest, until her death, and then to be divided. He then gives to her one third of the proceeds of this sale, and the whole of the increase of the estate, except the negroes. He further directs, that, after the death of his wife, his boy, George Washington, shall be emancipated. The defendant, Emberson, was appointed one of the executors Mrs. Moore died, and by her last will, appointed the plaintiffs her executors, and the bill is filed for an account; and among other things, charges that the testatrix, by her will, gave to the plaintiff. Creswell, the boy Washington to be emancipated, as soon as the laws will permit; that the defendant, after the death of Mrs Moore, sold the boy Washington, as the property of his testator, and that, during the life of the testatrix, Mrs Moore, he hired out, for sevcral years, a valuable negro boy and received a large sum therefor, and claimed the money as belonging to the estate of Adam Moore.

The answer of the executors of A. Moore admits the contents of their testator's will to be, as set out in the bill, the sale of Washington, and the hiring out of Stephen, and that the amount of his hire is in their hands. They aver, as to Stephen, that, apprehending that the perishable property and the other property directed to be sold would not pay the debts, they obtained an order from the County Court to sell Stephen, but as the deficiency was not large, and the negro was willed to Mrs. Moore for her life, at her request, instead of selling him, they hired him out for the purpose of paying the debts.

No more of the pleadings are set out than is necessary to bring in view the question submitted to this Court at this time.

The bill was filed at September Term 1841 and the answer at Spring Term 1843. Upon the hearing a decree for an account was made, and, at the same term, by an order of Court, the case was referred to a commissioner. The order of reference was as follows; “on motion of the plaintiff's counsel, it was ordered, that this cause be referred to J. P. Caldwell, to take an account and report to the next Court of and concerning the assets of Adam Moore, deceased, &c., the amount of that portion of it belonging to the late Hannah Moore, and that he report the facts in relation to the bequest and sale of the slaves Washington, &c.” At spring term 1848 the commissioner made his report, and, among other things reported, 1st. That the negro boy Washington belonged to the plaintiff, Creswell, and, he, now assenting to the sale, is entitled to recover the amount he sold for with interest, as set forth in the report. 2nd. That as to the hire of Stephen. I decide that the plaintiffs, as the executors of Hannah Moore, have a right to recover the same with interest as stated. 3d. Of the growing crop of corn and hay, I decide, they properly belong to the estate of Hannah Moore, and that the plaintiffs had a right to recover the same.

To this report the defendants filed the following...