Patterson v. High
| Decision Date | 31 December 1851 |
| Citation | 43 N.C. 52,8 Ired.Eq. 52 |
| Court | North Carolina Supreme Court |
| Parties | JAMES N. PATTERSON ADM'R . v. PEYTON HIGH, EX'R . |
On the death of a feme covert, entitled to choses in action, administration should be taken out on her estate, for the purpose of paying her debts, if there be any, and for distributing the residue of her asset s as the law directs.
The husband has a right to such administration, but he may assign his right to another.
It has long been the established law in this State, that the increase of slaves belongs to the remamder-man, and not to the tenant for life of the mother.
The cases of Timms v Potter, 1 Hay. 234, Glasgow v Flowers, 1 Hay. 233, and Erwin v Kilpatrick, 3 Hawks. 456, cited and approved.
Cause removed from the Court of Equity of Orange county, at the Fall Term, 1851.
The plaintiff, in his bill, set forth, that John B. Shaw died in the year 1816, having left a last will and testament, of which, among others, he appointed John Shaw, who alone qualified, and the defendant, Peyton High, executors; that by the said will he bequeathed as follows: “I lend to my wife, Frankey Shaw, during her natural life, or widowhood, ten negroes,” (naming them); and, in another clause, “I give to my daughter, Polly Morgan, after the death or marriage of my wife, one negro woman, named Isabel, to her and her heirs forever.” The bill further set forth, that the said testator directed, in and by his said will, that, after the death of his wife, a large portion of his property should be divided among his children, of whom the said Polly was one. The bill further set forth, that the said Polly Morgan was the wife of Lemuel Morgan, who is still living, and that she died after the death of the said testator, and in the lifetime of the said Frankey Shaw, the wife of the said testator, and that, at the request of the said Lemuel Morgan, administration on her estate has been duly granted to the plaintiff. The bill further alleges, that the said Franky Shaw, above mentioned, died in the year 1851, having, during her life, held possession, by the consent of the executors, of the property bequeathed to her by the will of the said John B. Shaw, including, among others, the said woman Isabel, who has now a large increase, born since the death of the said testator. The bill further alleged, that, all other persons named as executors in the will of the said John B. Shaw, being dead, the defendant has qualified as the surviving executor, and has taken into his possession the said woman, Isabel, and her increase, as well as the rest of the estate, to which the plaintiff's intestate was entitled, under the said will, in remainder after the death of the said Franky, and that he refuses to pay or deliver the same to the plaintiff. The bill concludes with the usual prayer for an account and relief.
The defendant in his answer admits all the facts set forth in the bill, but he avers that the said Polly Morgan left no children, and he is advised, that, in that event, all the estate in remainder bequeathed to her by the said will, not having vested in her during her life, passed to her surviving brothers and sisters, and that, therefore, the plaintiff has no claim.
The cause was set forth for hearing upon bill and answer and, by consent of the parties, transferred to this Court.
Norwood, for the plaintiff .
Saunders and G. W. Haywood, for the defendant .
The...
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