Opinion
03-11-1818
Timberlake and Wife v. Graves
Wirt and Leigh for the appellants. Wickham for the appellee.
In detinue, instituted by the appellants against the appellee, it appeared from a special verdict, that the plaintiffs John Timberlake and Margaret his wife, (late Margaret Allen,) and Patsy Allen an infant by Garrett Minor her guardian, claimed the slave in the declaration mentioned, under the following clause in the last Will of Nancy Woolfork deceased; viz; " I give unto my beloved nephew John Allen, the following Negroes, to wit; " (inserting their names; ) " them and their increase to him and his heirs forever; but, in case it should please God for him to die without heir, then and in that case, it is my wish what I have given him, to be equally divided between my two nieces Margaret Allen and Patsy Allen; " and that the defendant Graves was in possession of and claimed the said slave by purchase from John Allen the first devisee, who died without issue before the institution of the suit.
Upon this verdict, the Circuit Court entered judgment for the defendant, whereupon the plaintiffs appealed.
Wirt and Leigh for the appellants.
Wickham for the appellee.
OPINION
March 11th, 1818, JUDGE ROANE pronounced the Court's opinion that the Judgment be reversed, and entered for the defendants; for which he assigned the following reasons.
The ground on which the opinion of the Court is founded, is, that the devise over to the nieces is to them merely, and not to them and their heirs. It purports a limitation to themselves, and was intended as a personal benefit to them. This construction is fortified by the words, " then and in that case," and " equally to be divided," found in the bequest; which, although, singly taken, they might not be complete to limit the previous words, have that effect in conjunction with the circumstance above mentioned.
The Court has considered the authorities referred to, and is of opinion that none of them conflict with or overrule this construction.