Weeks v. Weeks

• Decision Date: 31 December 1847
• Citation: 5 Ired.Eq. 111,40 N.C. 111,47 Am.Dec. 358
• Parties: JESSE WEEKS et al. v. ELIJAH WEEKS.
• Court: North Carolina Supreme Court

5 Ired.Eq. 111

40 N.C. 111

47 Am.Dec. 358

JESSE WEEKS et al.

v.ELIJAH WEEKS.

Supreme Court of North Carolina.

December Term, 1847.

The Act of the General Assembly, of 1827, relative to the construction of limitations over in will after a “dying without issue” &c. which was ratified on the 7th day of January, 1828, and directs that it shall not apply to wills made before the 15th day of January next,” must be construed to speak from the first day of the session, which was in November 1827 and therefore it went into operation on the 15th of January, 1828.

A testator in February 1828 bequeathed a negro girl to A. and B. “and if they should die without an heir or heirs lawfully begotten, the said negro &c. to return to my children.” The testator had eight children living then and also at the time of his death. Held, that they took under this will an immediate interest, which was transmissible to their executors or administrators.

A person, who has received negroes from his father or father in law under a parol gift or loan, is but a bailee and cannot avail himself of the statute of limitations.

As to land, where one of several tenants in common has the actual adverse possession, claiming the whole to be in himself, the other claimants must recover their shares in ejectment, before they can come into a Court of Equity for partition: but the rule is not so as to personal chattels, because one tenant in common of a personal chattel cannot recover from his cotenant at law, except for the destruction of the thing or its disposition in such way that it cannot be had for the purpose of partition.

Though a husband may assign or release the wife's choses in action, or convey her expectant legal interest in personal chattels, yet if he do not assign release, or convey them during the coverture, they survive to her or to her representative.

Where neither of several teuants in common has possession of the slaves claimed in common, but they are in possession of another person claiming adversely, a bill in Equity for partition cannot be maintained, until the tenants have recovered at law, although the person having such possession be made a party defendant to the Bill.

The cases of Lewis v. Smith, 1 Ired. 145, Collier v. Poe 1 Dev. Eq. 55, Palmer v. Faucet, 2 Dev. 240, Green v. Harris, 3 Ired. 210, Martin v. Harden, 2 Dev. and Bat. 504, Garrett v. White, 3 Ired. Eq. 135, Lewis v. Wasson, 3 Dev. 398, Jones v. Zollicofler, No. Ca. T. R. 212 and 2 Hawks 623, Burnet v. Roberts, 4 Dev. 81, Knight v. Leake, 2 Dev. and Bat. 123, Whitbie v. Frazier, 1 Hay. 275, Blount v. Haddock, 2 Hay. 183 and Con. R. 75, McCallop v. Blount, Con. R. 96, Johnston v. Pasteur, Con. R. 464 Norfleet v. Harris, Con. R. 517, and McBride v. Choate, 2 Ired. Eq. 610, cited and approved.

The case of Lewis v. Hines, 1 Hay. 278 over-ruled.

The case of Hearne v. Kevan, 2 Ired. 34 commented on.

Cause removed from the Court of Equity of Carteret County, at the Fall Term, 1847, by consent of parties.

Jabez Weeks, the elder, by his will, executed on the 23d day of February, 1828, bequeathed as follows: “Item. I give and bequeath unto my grand-son, William Bell, and my grand-daughter, Caroline Bell, one negro girl named Sophy, to them, their heirs and assigns forever; and if they should die without an heir or heirs lawfully begotten, the said negro girl and her increase, that may come hereafter to return to my children.” The grandchildren, William and Caroline, above named, were the the only issue of the testator's daughter, Vashti, by her husband Abner S. Bell; and she, Vashti, died before the making of the will. The testator died in August or September, 1828, leaving four sons and four daughters surviving him; namely: Elijah, Jesse, Isaac, and Jabez, and Elizabeth, Rebecca, Sarah, and Mary, who were all born before the making of the will. Elijah was appointed the executor of the will, and proved it in October, 1828. Upon the marriage of Bell with his first wife, Vashti, in 1824, the testator put into his possession the girl Sophy and she remained there, when the testator made his will and died. After the death of his first wife, Abner S. Bell, in the testator's life time, married the testator's daughter Elisabeth; who died, as also did the daughter Rebecca, during the lives of William and Caroline Bell--the latter of whom, Caroline, died on the 4th of October, 1829, and the former, William, on the 17th of January 1842. In March 1830, Abner S. Bell, procured himself to be appointed the guardian of his son William, Elizah Weeks, the son and executor of the testator, took administration of the estates of his deceased sisters Elizabeth and Rebecca.

The bill was filed in March 1843, against Elijah Weeks and Abner S. Bell, by the other children of the testator or the executors of those of them who have died. It states that the woman Sophy has issue a large number of children, and that all of them are in the possession of the defendant Abner S. Bell, who refuses to produce and deliver them up, alleging that he is entitled, in right of his late wife Elizabeth, to a share thereof, as tenant in common with the other children of the testator. The prayer is, for a discovery of the number and names of the negroes and for their production, and partition into eight shares, one for each of the testator's children or the executors or administrators of such of them as are dead, and, if partition cannot be made specifically, that a sale may be decreed for that purpose.

The defendant, Elijah Weeks, answers, that he assented to the legacy of the girl, Sophy, and delivered her to the defendant, Abner S. Bell, as the guardian of his two children, shortly after the death of the testator; and that, after the death of Caroline and William, he applied to the defendant Abner S. Bell, to surrender the negroes, that they might be divided, but “he denied the right of the plaintiffs and this defendant to any part or share of said slaves, and refused to surrender them.” This defendant submits, that only such of the children of the testator, as survived William and Caroline Bell are entitled to the negroes, and he insists that under the will they do belong to such survivors, and he assents to a sale for the purpose of making a division between them.

The answer of Bell, after admitting the will, death of the testator, the number and names of the children and their deaths, as before stated, sets forth, “that in the year 1824, in the life time of the said Jabez Weeks, the elder, and of Vashti, who was then the wife of this defendant, and a daughter of said Jabez, he, this defendant, became possessed of the said negro Sophy, aged about 17 years, and that he has ever since had said negro in his possession, claiming her and her increase, adversely to the world, and particularly to the said Jabez, the testator, and the said Caroline and William, and the plaintiffs: and that in or about the year 1830, the said Elijah, the executor of said Jabez, demanded the said negro Sophy and her increase from this defendant, who refused to deliver them to him, claiming the title to be in him, this defendant.”

The answer then sets forth the names and ages of the negroes, and admits that the defendant refused to give them up to the complainants; but he says he so refused, because he denied any title to them in any of the complainants, or that he was tenant in common with them. The answer then insists, that the slave Sophy vested absolutely in William and Caroline Bell, under their grandfather's will, and that the limitation over is void; and further, if that be not so, that then the title of the remainder-men is a legal title upon which there is a complete remedy at law, against the defendant, if he be a wrong doer. The defendant, further, insists upon the statute of limitations.

Upon replication to the answers, evidence was taken, that about the beginning of the year 1829 or 1830, Elijah Weeks, as the executor of his father, applied to the defendant, Bell, for the negroes, for the purpose of hiring them out for the benefit of the children William and Caroline, and that Bell became displeased and refused to give them up, saying that he was as capable of being the guardian of his children as Weeks was, and that, after Bell was appointed the guardian of his son (in March 1830,) he put up the negroes for hire, and bid them off himself two or three years.J. H. Bryan, for the plaintiffs .

No counsel for the defendants.

RUFFIN, C. J.

There is no doubt upon the construction of the will. It is clear, that, before the Act of 1827, a limitation over after a dying without an heir, or heirs of the body, is too remote; and it is equally clear, that by that Act, such a limitation is made good, by construing it to be a limitation to take effect at the death of the person without having an heir living at the time of the death. The question upon this point is, then, whether the Act of 1827 operates upon this will, or not. The session of the General Assembly of that year began on the 19th day of November 1827; but this act was ratified and signed by the Speakers of the two Houses on the 7th day of January 1828, and has a proviso, “that the rule of construction, contained in this Act, shall not extend to any deed or will executed before the 15th day of January next.” The enquiry is, whether the Act was in force from the 15th of January 1828, or 1829; and that depends upon the period to which the word next relates. It means “next after;” but “next after” what? The adjective next, no doubt, agrees with “January,” and not with the “day” of that month: meaning “next January,” and not “the next fifteenth day of January.” If therefore, next relate to that point of time, when the Act was finally passed, it would not be in force until January 15th, 1829. But we believe, that the rule of construction is too inveterate to be resisted, that unless an Act refers to its ratification as the time from which it speaks, it must be...