Jones v. Zollicofper

• Citation: 9 N.C. 623
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 December 1823
• Parties: JONES AND OTHERS v. ZOLLICOFPER.—From Halifax.

9 N.C. 623

JONES AND OTHERS

v.ZOLLICOFPER.—From Halifax.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1823

1. A testator by his will gave to his wife the use of certain slaves for her life, and after her death the slaves were directed to be divided among testator's children; the wife and one of the testator's children were made executors; the wife took the property as legatee, and, for her own benefit, sold one of the slaves, and three of the children joined in the conveyance with her; the rest of the legatees filed a bill in 1794 against the purchaser under the widow, and the court dismissed the bill. In 1811, on a bill of review filed, the then Supreme Court reversed the decree dismissing the bill, and on a claim now set up by the purchaser to be substituted to the rights of his vendors to such share as they would be entitled to in the other parts of testator's estate, it was Held, that where one claimant has two funds, and another but one of them to which he can resort, then if a selection be made by him, having access to both, of that fund to which alone the other has access, and such selection be dictated by mere caprice, equity will restrain it, and confine the claimant to the fund not operated by the claims of the other; but if convenience, and not caprice, dictate the selection, the most that equity does is to substitute; and in the case stated, if the property were of such nature that value alone is to be regarded, so that the Court might see that fraud or caprice induced complainants to pursue the property in defendant's possession, the Court might interfere; but with slaves, towards whom an attachment may exist regardless of their real value, the case is different, and the Court will not interfere, because a person who had right in common with another to a parcel of slaves might be actuated by other motives than mere caprice or fraud, who refused to validate a sale made in severalty by his copartner of some favorite slaves.

2. Held further, that in this case the double fund was lost without any default of the complainants, and by a decree of a court of supreme jurisdiction, and, therefore, the Court would not presume that the complainants fraudulently abandoned that fund with an intent capriciously to pursue, by a bill of review, the slaves in the defendant's possession.

3. Held further, that the accumulated rights of defendant's vendors, on the death of some of the children of the father, the testator, inured to the benefit of the defendant, whether such children died before or since the sale to him.

IN 1794 the complainants as legatees and next of kin to William Jones, who died in 1758, filed a bill against Zollicoffer and others, and set forth that by the will of W. Jones the use of certain slaves named therein was given to his wife, Sarah Jones, for life, and testator by his will directed that after his wife's death the slaves should be divided by his executors among his children, and made his wife and his son William (one of the complainants) executors; that the wife died in 1793, and that Zollicoffer had possession of some of the slaves under a purchase for a small price and with notice of the children's

claim; that the wife had elected to hold as legatee, and that all the debts had been paid before the sale to Zollicoffer. The bill prayed that the slaves might be surrendered, and defendant decreed to account for their profits.

Zollicoffer by his answer admitted the purchase of a negro named Beck from the widow, and from Brittain and Elizabeth Jones, two of the children, and from Perry, who married another of the children, who assured him that they could or would make good title to her.

A jury found on an issue submitted to them that Zollicoffer had purchased Beck for a valuable consideration without notice, and that the sale was justifiable. The bill as to Zollicoffer was then dismissed.

A bill of review was afterwards filed, and in October, 1811, the then Supreme Court reversed the decree, dismissing the bill as to Zollicoffer. N. C. Term, 212. At the last term of this. Court, the cause being here pending, the Court ordered certain issues to be submitted to a jury, and they found that at the time of the sale to Zollicoffer Sarah Jones, the widow, held the property as legatee and not as executrix, and that she sold the negro Beck for her own benefit. Whereupon the Court referred it to the clerk and master to take an account of the number of the negroes mentioned in the bill, and their increase, their value, hire, expense of rearing, and other expenditures relative to thesaid slaves, together with the proportionate shares of the respective claimants.

And at this term the clerk and master reported that George Zollicoffer obtained possession of Beck in 1774 by a conveyance from Sarah Jones, Brittain Jones, William Perry, and Elizabeth Jones, and that at his death in 1815 he had her and her increase in his possession. That the descendants of Beck were thirty-five in number, of whom, at the time of taking the account, William E. Webb, administrator of George Zollicoffer, had in possession eighteen, two had been sold, and the residue, fifteen, were in the possession of James Zollicoffer, who claimed them under a gift from his father, George, made some time after 28 June, 1807. The value of the negroes and the profits of their hire were reported pursuant to order.

The clerk further reported the respective shares of the complainants to be as follows: The complainants in the original bill were William Jones, James Winters (a purchaser from Simon Jones, one of the children of W. Jones the elder), James Carstaphen (a purchaser from Jones Nichols, issue of Winnie, another of the children of W. Jones the elder), and Richard Richards, who intermarried with Elizabeth Jones.

The defendants were Brittain Jones, Jeremiah Stephens, administrator of Simon Jones, George Zollicoffer, William Perry, and Sylvia, his wife. The complainants in the hill of review were William Jones, John Purnell, administrator of James Winters, and James Carstaphen. Since the cause was transmitted to this Court, John Purnell,...