Opinion
(December Term, 1846.)
Where by a deed of gift, made in 1833, the donor conveyed a female slave to B and then says, "that is, after my decease, to have and enjoy unto the said B, his heirs, etc." Held, that under the operation of our statute passed in 1823 (Rev. Stat., ch. 37, sec. 22) the issue of the female slave as well as the slave herself passed to B in the same manner as if this disposition had been made by will.
APPEAL from COLUMBUS Fall Term, 1846; Settle, J.
Trover, brought to recover slaves, Mercury or Mick, Ireland, Archey, and Anna Jane, which the plaintiff claimed as the children of Hesse, one of the slaves mentioned in the annexed deed of gift, marked A, duly executed from Mary Baldwin to the plaintiff (and duly proved and registered), the said four slaves having been born between the execution of the said deed and the death of Mary Baldwin, the maker of the said deed. The defendant claims them as the administrator of the said Mary Baldwin, who held them to the time of her death, and, upon demand by the plaintiff after the death of the said Mary, refused to deliver them up; after which the said action was brought and the foregoing facts agreed upon, and the case is submitted to the court for judgment, and if the court is of opinion that the plaintiff is entitled to recover, then judgment to be rendered for the plaintiff for $1,000 and costs; and if not, then judgment to be rendered for defendant for costs. The court being of opinion that the plaintiff is entitled to recover, judgment is accordingly rendered for the plaintiff for $1,000 and costs, from which judgment the defendant appeals to the Supreme Court.
(A)
STATE OF NORTH CAROLINA — COLUMBUS COUNTY.
To all people to whom these presents may come, I, Mary Baldwin, send greeting:
Know ye, that I, the said Mary Baldwin, for and in consideration of the natural love and affection which I have and bear unto my beloved son Godfrey Baldwin, of the State and county aforesaid, and for divers other good causes and considerations, have given and granted and by these presents do give and grant unto the said Godfrey Baldwin (124) one negro woman by the name of Hesse and two children by the names of Let and Flora, also one bed and furniture, six head of cattle, that is, after my decease, to have and to enjoy unto the said Godfrey Baldwin, his heirs, executors, and administrators and assigns, to his only proper use and behoof; and I, the aforesaid Mary Baldwin, do warrant and defend the said property unto the said Godfrey Baldwin and his heirs and assigns forever, and I also bind myself, my executors and assigns, to warrant and defend the same by these presents. In witness whereunto I have set my hand and seal this 4 April, 1833.
MARY BALDWIN. (SEAL)
Signed and sealed and delivered in presence of us, WILLIAM BALDWIN, JOHN WINGATE.
Strange for plaintiff.
No counsel for defendant.
In April, 1833, Mary Baldwin, the mother of the plaintiff, executed to him a deed of gift of a slave named Hesse. After words of immediate gift comes this clause: "that is, after my decease, to have and enjoy unto the said Godfrey Baldwin, his heirs," etc. At common law the plaintiff could have derived no benefit under this deed; for the life estate in Hesse, which remained in the donor, was equal to the entire estate in the whole chattel, and there would have been no remainder to pass, on her death, to her son. But such limitations, if contained in a last will and testament (to wit, to one for life, remainder over to another), were always held good as executory devises or bequests. The Legislature, in 1823, passed an act declaring "that every limitation by deed or writing, of a slave, which limitation, if contained in a last will and testament, would be good and effectual as an executory devise or bequest, shall be good as a remainder of such slave, and any limitation made or reserved to the grantor or donor in any such deed or writing of a slave shall be good and effectual in law, provided it had been (125) made to another person, it would have been good according to the preceding clause." Rev. Stat., ch. 37, sec. 22.
The law is very well established, we believe, in all the slave-holding States that a bequest of a female slave to one for life, remainder to another, carries the mother and her increase during the life estate, and to the remainderman on the determination of the life estate.
In the case now before us the deed of gift transferred to the plaintiff an immediate interest in Hesse; but herself, and her issue born after the date of the deed, were not to be possessed and enjoyed by him until the death of his mother. We say her issue, because if she (Hesse) passed over to the plaintiff on the death of Mrs. Baldwin, her issue (who were in herself at the date of the deed) must, in law, also pass with Hesse to the plaintiff on that event happening.
PER CURIAM. Affirmed.