Skinner v. Lamb

• Citation: 25 N.C. 155,3 Ired. 155
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 December 1842
• Parties: HENRY W. SKINNER AND WIFE v. SAMUEL D. LAMB.

3 Ired. 155

25 N.C. 155

HENRY W. SKINNER AND WIFE

v.SAMUEL D. LAMB.

Supreme Court of North Carolina.

December Term, 1842.

A. by will dated in December, 1836, devised and bequeathed, among other things, as follows: “The balance of my estate to be equally divided between my wife and children,” and in another clause “My wish and desire is, should either of my children die, without leaving an heir begotten by their body or bodies, that the survivor or survivors have the whole,” and, in another clause, “should my children all die without leaving an heir, begotten by their bodies, my wish and desire is, that my brother T. should heir the whole of my estate as allotted to my children.” The testator died, leaving three children, M. O. and E. M. died, leaving a child. After the death of M., O. died without issue, leaving E. surviving. Held that all the estate of O. so dying became vested in E. her only surviving sister, and that the child of M. was entitled to no share of it.

The cases of Gregory v Beasley, 1 Ired. Eq. Rep. 25, and Threadgill v Ingram, 1 Ired. Rep. 577, cited and approved.

An appeal from the Superior Court of Law of Pasquotank County, at Fall Term, 1842, his Honor Judge BAILEY presiding.

The action was detinue, brought to recover certain slaves mentioned in the declaration. On the trial, the will of William W. Freshwater was offered in evidence, (of which the parts material to this case are quoted in the opinion delivered in this court.) It was admitted that the executor qualified to the will, and assented to the legacies contained in it. It was also admitted that Samuel D. Lamb, the defendant, married Matilda, the daughter of the testator, and the same person mentioned in the will as one of his daughters--that Henry W. Skinner, one of the plaintiffs, intermarried with Elizabeth T. Freshwater, another daughter mentioned in the will, and who is also a plaintiff--that Orange Ann Virginia, the other daughter of the testator, died after the death of the testator, under age and without issue--that administration on her estate was granted to Samuel D. Lamb, who, at the time of bringing this suit, had the negroes claimed in his possession, they being the negroes allotted to Orange, under her father's will--that before the death of Orange, Matilda had died, leaving an only child who is still alive.

Upon these facts, his Honor instructed the jury that the plaintiffs were entitled to recover the negroes claimed in the writ. A verdict having been returned for the plaintiffs, and judgment pronounced accordingly, the defendant appealed.

A. Moore for the plaintiffs .

No counsel for the defendant.

DANIEL, J.

William W. Freshwater made his will, and, after some devises of...