Gay v. Baker

• Decision Date: 30 June 1860
• Citation: 68 Am.Dec. 229,58 N.C. 344,5 Jones 344
• Court: North Carolina Supreme Court
• Parties: WILLIFORD GAY AND OTHERS v. HENRY BAKER AND OTHERS.

5 Jones Eq. 344

58 N.C. 344

68 Am.Dec. 229

WILLIFORD GAY AND OTHERS

v.HENRY BAKER AND OTHERS.

Supreme Court of North Carolina.

June Term, 1860.

A conveyance in trust for a woman and her children, she having children at the time, nothing appearing on the face of the deed to show a contrary intention, was Held to vest an estate in the mother, and the children then born, and in one in ventre sa mare as tenants, in common, but that children born afterwards were not entitled to come in.

CAUSE removed from the Court of Equity, of Franklin county.

The bill was filed against the trustee, Henry Baker, junior, for an account, and for a sale of the property in his hands, and a division of the proceeds among those entitled, according to a deed executed by Henry Baker, senior, on 16th May, 1819.The deed recites, as a consideration, the love and affection which the donor has for Elizabeth Gay and her children, and for James Baker, and conveys to Henry Baker, junior, a negro woman by the name of Delaney, and her two children, Mary and Amy, “to have and to hold the said negroes, to the said Henry Baker, junior, his executors and administrators, for the proper use, behoof, benefit and advantage of my daughter aforesaid, together with her children aforesaid, and for the security of the payment of $125, with legal interest thereon, to my aforesaid son, James Baker.”The deed then provides for the sale of one of the negroes for the payment of the $125, and gives the overplus of the money arising from such sale, and then proceeds as follows: “the whole equitable interest in the said negroes, is to belong to my daughter Elizabeth and her children, in common.”All the children of Elizabeth Gay, that were surviving at the bringing of this suit, and the representatives of such as were dead, are made parties, either plaintiff or defendant, as also is the administrator of the said Elizabeth, who is now dead intestate.

The trustee, Henry Baker, junior, answered, giving an account of his trust, (upon which there is no question between the parties,) and stating the fact that four of the children only of Elizabeth, were born at the time of the making of the deed, and one, now Mrs. Carter, was born six months afterwards; and he states that there are conflicting claims set up by the several children, as to who are entitled, the four born before the 16th of May, 1819, (the date of the deed,) claiming the whole of the property--Mrs.Carter, then in ventre sa mare, insisting on the same principle, but claims that she shall come in for one-fifth; while those born after Mrs. Carter, insist that they are all equally entitled, after the death of their mother.The administator of Mrs. Elizabeth Gay, urges that she took, with her children in esse, and is entitled to one-sixth part of the fund.The trustee asks the court for a construction of the deed above set forth, and for a decree which will protect him against these conflicting claims.

Two of the children, who were alive at the making of the will, died in the lifetime of their mother, and another question is, whether their representatives are entitled to a share.The whole of the slaves, after the sale of one for the payment of James' debt, and one other for the better provision of the family, remained in the custody of Mrs. Gay, and worked for the common support of the family till her death, which took place in 1858.

The several children interested, answered the bill, each...