Knight v. Wall

• Decision Date: 31 December 1836
• Citation: 19 N.C. 125
• Court: North Carolina Supreme Court
• Parties: JOHN A. KNIGHT et al. v. STEPHEN WALL.

19 N.C. 125

JOHN A. KNIGHT et al.

v.STEPHEN WALL.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1836

1. Where a legacy is given to a described class of individuals, as to the children of A. B., and no period is assigned for the distribution of it, the persons answering this description, at the death of the testator— that is, the children of A. B., then in existence, or legally considered as then in existence—are alone entitled to the bequest. But when the enjoyment of the thing given is not to be immediate, but is postponed to a particular period, as at the death of A. B., and there are no special provisions in the will indicating a different intent, then not only those who answer the description at the death of the testator, but those who come into being after his death, and before the time when the enjoyment is to take effect, so as to answer the description at any time before that assigned for the distribution, are all entitled to take: and if any thus entitled to take die before the period of distribution, and there are no words in the will indicating an ulterior disposition of their interests, as to the survivors, they are vested interests, and are transmitted to their representatives.

2. A bequest by a testator of a negro girl and her increase to his daughter, for life, and after her death, that "the girl shall go to the children" of his daughter, will carry the increase of the negro girl, as well as the girl herself to the children, after their mother's death, although such increase are not mentioned in the bequest over, unless it appears from other parts of the will, that the testator intended otherwise.

3. A copy of a will made in another state, with its probate certified by the judge of the court in which it was proved, and accompanied by the testimonial of the Governor of that State, that the person who gave that certificate, was the proper officer to take such probate, and to certify the same, is a sufficient authentication of the will, under our act of 1802, (Rev. ch. 628,) to authorize its reception as evidence in our courts.

4. No demand is necessary to be shown, in order to sustain the action of detinue for slaves, where it appears, that when the action was brought, the defendant held and claimed them as his own property. But if it were necessary, a demand made by one of several plaintiffs would be sufficient, where it was not objected to by the defendant at the time it was made.

5. A title to slaves cannot be acquired by a parol estoppel.

This was an action of Detinue for a negro woman slave named Grace, and her four children, Juno, Beck, Wisdom, and Wesley, tried at Anson, on the last Circuit before Saunders, J.

The plaintiffs claimed title under a paper writing, purporting to be the last will and testament of William Hicks, who resided in the state of South Carolina, and died there, in the

year 1791. A copy of this writing, together with its probate, certified by the judge of the Court of Ordinary, where the same was proved, and accompanied by the testimonial of the Governor of the state of South Carolina, that the person giving the certificate was the proper person to take such probate, and to certify the same, was offered in evidence by the plaintiffs, and objected to by the defendant, upon the ground that it was not properly authenticated; but was received by the court. This will contained the following clauses: "Unto my daughter Obedience I do give and bequeath one negro girl named Hannah, during the said Obeddience's natural life, and after her decease, the said girl shall go to the said Obedience's children. Unto my daughter Frances I do give and bequeath one negro girl named Grace, and her increase, during the natural life of the said Frances, and after her decease, the girl shall go to the said Frances's children. Unto my daughters Elizabeth and Martha, I do give and bequeath one negro woman named Rose, and child, Flora, in the following manner—the said Rose and child, as likewise her increase, to remain in possession of my executors, to support my above named daughters, till the time that my daughter Martha shall he fourteen; and then she, the said negro, and her increase, shall be equally divided between my said daughters Elizabeth and Martha." Prior to the death of the testator, his daughter Frances had intermarried with Moses Knight, and had two children, to-wit, Benjamin Knight, and Anna, afterwards married to DANIEL M'Intosh; and after the death of her father, the said Frances had four other children, to-wit, John A. Knight, Elizabeth, afterwards married to Caleb Curtis, Frances, afterwards married to Cullen G. Britt; and Sarah Knight. Of these children, Benjamin and Sarah died in the lifetime of their mother, who died in May, 1828, about eleven months before the commencement of this suit. The action was brought in the names of the surviving children, together with the husbands of the females, and the administrators of Benjamin and Sarah Knight, deceased, to recover from the possession of the defendant, the negro girl, Grace, mentioned in the will of William Hicks, and some of the children which she had borne since the death of the testator. For the plaintiffs it was contended, that by the bequest in the will above-mentioned, to the

testator's daughter Frances, she took a life estate in Grace and her increase, and that after the death of the said Frances, Grace and her increase became the property of the said Frances's children; but it was objected by the defendant, that the girl Grace only, and not her increase, was given to the children of the said Frances after her death; and his Honor was requested so to charge the jury, which he refused. The defendant objected also, that there was a misjoinder of plaintiffs, and moved for a nonsuit upon that ground, contending, that as Sarah Knight was born after the death of the testator, and died before her mother, no interest under the said bequest vested in her, and that consequently her administrator was improperly made a party; and that as Benjamin Knight also died before his mother, his representative was likewise improperly joined in the action, as one of the plaintiffs. This point was reserved by his Honor, and subsequently decided against the defendant. The defendant set up title to part of the slaves in question under a judgment and execution against Moses Knight, the husband of the legatee for life; and to the remainder under a purchase at a sale made by a trustee to whom the said Moses Knight had conveyed them for the purpose of securing the payment of certain debts; and it was contended for the defendant, that having acquired the possession of the said slaves legally, it was incumbent on the plaintiffs to show that they had made a proper demand before the bringing of their suit. To prove that such a demand was made, the plaintiffs introduced a witness, who testified, that in September, 1828, he went with John A. Knight, one of the plaintiffs, who said to the defendant, "I demand of you Grace, Juno, Beck, Wisdom, and Wesley," to which the defendant made no reply. For the defendant it was insisted, that as John A. Knight was not alone entitled, it was necessary that the demand should have been made by the authority or with the assent of all the plaintiffs, and that this must be shown in evidence to the jury; and his Honor was requested so to charge. The defendant then introducedtestimony to show, that the slaves in question had been for many years in the possession of Moses Knight, who had kept and used them as his own; that they were generally regarded in the neighbourhood as his property; that at the sale made by the trustee aforesaid, one of the plaintiffs was present, and

bid for one of the said slaves, and another plaintiff, in answer to an inquiry about the title, said, that he knew of no adverse claim to that of Moses Knight; and the defendant proved...