Foust v. Ireland

• Court: North Carolina Supreme Court
• Writing for the Court: PEARSON
• Citation: Foust v. Ireland, 46 N.C. 184, 1 Jones 184 (N.C. 1853)
• Decision Date: 31 December 1853
• Parties: DANIEL FOUST, ADM'R v. IRELAND AND HURDLE.

1 Jones (NC) 184

46 N.C. 184

DANIEL FOUST, ADM'R

v.IRELAND AND HURDLE.

Supreme Court of North Carolina.

December Term, 1853.

Where slaves are bequeathed for life, and there is an intestacy as to the remaining interest in them, and one of the next of kin dies during the continuance of the life estate, the administrator of such next of kin may recover the share of his intestate after the death of the life owner.

In giving a construction to the will, the presumption is, that the testator did not mean to die intestate as to any part of his estate, and this presumption may be strengthened by declarations in the will to that effect.

Where a testator bequeaths personal property to his wife, SO LONG AS SHE REMAIN MY WIDOW, and in case she marry, shall QUIT THE PLANTATION and give up the property; but makes no provision for the alternative of not marrying; in such a case, where the widow did not marry, it was HELD, that this bequest might be construed to mean, that the widow should take an absolute estate in the property in case she remained his widow, and this construction would be given where it was fortified by the context of the will.

ACTION of DETINUE, for the recovery of certain slaves, tried before his Honor Judge SETTLE, at Spring Term, 1853, of Alamance Superior Court.

Elizabeth, the daughter of Peter Foust, married one John Clapp, and was living at the death of her father. After the death of her father, but in the life time of her mother, Elizabeth died, leaving her husband and several children, her surviving. The plaintiff Daniel Foust administered on the estate of Elizabeth, and claimed the slaves in question as her property, as one of the next of kin of Peter Foust. The surviving executor of Peter Foust had acquiesced in this claim, and allotted and delivered the slaves to the plaintiff: afterwards they went into the possession of the defendants, and were detained by them at the bringing of this suit. The defendants claimed as purchasers from the children of Elizabeth Clapp, who, at the death of Mary Foust were her next of kin, their mother being then dead, and they insisted that, according to the following will of Peter Foust, their grandmother, Mary, took an absolute estate in the property bequeathed to her, of which these slaves are a part. The plaintiffs contend that, under this will, Mary Foust took only a life interest, and that, as to the interest after her death, there was an intestacy which gave a vested right to the next of kin of Peter Foust immediately, but not to be enjoyed till after the death of Mrs. Foust.

The following is a copy of the will of Peter Foust:

“3d. As touching such worldly property as it has pleased the Lord to bless me with, I bequeath, give, devise and dispose of as follows:

4th. I give to my daughter Elizabeth Clapp a negro girl named Erry.

5th. I give to my daughter Sarah Amick a negro girl named Esther.

6th. I give to my son John Foust the plantation I bought of Joseph Stout, and a hundred acres of land that lie joining Daniel Foust, James Neal, Jacob Moulder and my own, a horse, saddle and bridle, and plow irons, with gears fit to plow.

7th. I give to my son George Foust the plantation I bought of William Ray, adjoining my own land, Jacob Marshall's and Freeman, a horse, saddle and bridle, plow and gear fit to plow.

8th. I give to my son Daniel Foust the plantation I bought of Henry Dale, with ten acres more, including the field that lies North of the house I now live in, with a horse, saddle and bridle, plow and gears fit to plow, and three hundred dollars in cash.

9th. I give and bequeath to my beloved wife, Mary Foust, the plantation I now live on, with all the household and kitchen furniture, with all the horses, cows and stock of every kind, wagon and plantation tools, of every kind, with all the negroes unmentioned, so long as she remain my widow; but, if she marry, she must quit the plantation, and have the half of the household and kitchen furniture, and a negro man, and a negro woman her life time, and they and their offspring, if any, to return to my children, to be equally divided between them, living at that time. I give her a horse, saddle and bridle, two cows: the remainder of the stock and household furniture, and every other property in her hand, to be sold, and the money given to the child she is pregnant with; if a boy, he to have eight hundred dollars, a horse, saddle and bridle, plow and gear fit to plow; if a girl, to have equal to what the other girls have had.

10th. I give my son Peter Foust the plantation I now live on, when he comes to age, if his mother be living and unmarried, to have the one-half thereof for himself, with a horse, saddle and bridle, plow and gears fit to plow, and the half of the land my father entered, which is to be divided between my brother Daniel...