Opinion
(June Term, 1856.)
Where slaves, advanced by A to his son B, were, on the death of the son, divided between his widow and children, and held adversely thereafter for three years, A, the father, is barred by the statute of limitations from afterwards reclaiming them.
Where one was appointed Administrator, and an entry of record made to that effect, and a bond given without security, his appointment is valid.
A bequest of "all my other negro slaves to the American Colonization Society." (some being previously willed) will pass, as well those held in common with another, as those held in severalty.
CAUSE transmitted from the Court of Equity of Perquimons.
Smith for the plaintiff.
Heath and Hines for the defendants.
Benjamin Gordon died intestate in the year 1841, possessed of certain slaves which had been given to him by his father, John C. Gordon, by parol, and the plaintiff Thomas F. Jones was appointed his administrator in 1842. At February Term, 1845, of Perquimons County Court, an order of partition was made of all the slaves belonging to the said Benjamin's estate; and those in question were duly assigned to his two daughters, Mary L. and Isa B. Gordon, by commissioners, and sanctioned by a judgment of that Court. Previously, however, to such order, the administrator made known to J. C. Gordon, the father of Benjamin Gordon, that he held those slaves as part of the estate of his intestate, and was ready to deliver them, provided he said so. He declined receiving them, and desired the administrator to treat them as the other property of the estate.
Upon this partition, Mrs. Gordon took possession of her part (353) of the estate, which embraced other slaves than those derived from J. C. Gordon, and also of the slaves in question, as the guardian of her two daughters, and hired them out, from year to year, until her death, in 1854; no division having been made between the daughters.
Previously to the death of her mother, Mary L. Gordon died intestate, under age and unmarried, leaving her mother and her sister, Isa, her next of kin and distributees. Henry W. Barber applied for administration on her estate, and was ordered to be appointed, on giving bond and security. He signed a bond himself and left it in the office, but it was not signed by any surety; though he admits his willingness to act if his appointment thus made be valid. He is made a party defendant to this bill, and states to that effect in his answer. The property held in common between the two sisters had never been divided between them before the death of Mary L., nor afterwards was the joint interest of Isa and her mother ever divided between them, previously to the mother's death.
Maria L. Gordon, the mother, made a will, in which she bequeaths as follows:
"Secondly. I give my negro man, Jack Blount, to my brother Thomas F. Jones, he knowing that I so give him, that Jack may enjoy every comfort."
"Third. I give all my other negro slaves to the American Colonization Society, provided the said negroes are willing to go to Liberia, and provided the Colonization Society is willing to receive them and send them to Liberia."
The plaintiff was appointed executor and accepted the office.
The slaves embraced in this latter clause, had expressed their willingness to go, and the American Colonization Society had signified its willingness to accept the trust of sending them to Africa.
The prayer of the bill is for a partition of the slaves held in common between the two daughters, and then of those held in common between Mrs. Gordon and her daughter Isa; and for a decree directing the plaintiff as to his duty in delivering the slaves to the said society, so that he may be protected.
The facts above stated are agreed to in a written statement, filed(354) as evidence in the cause, and the answer of the defendant Barber is substantially to the same effect.
The cause was set down for hearing upon the bill, answer and exhibits, and sent up by consent.
According to the facts admitted, John C. Gordon, the father of Benjamin Gordon, who died in 1841, might have reclaimed the negroes which he had previously put into his possession; but he is now barred by the statute of limitations. After the death of Benjamin Gordon in 1841, Thomas F. Jones, his administrator, took the negroes into his possession, and so held them until 1845, when, under an order of the proper court, they were divided between the widow, Mrs. Maria L. Gordon, and the two children of her husband, Mary L., and Isa Gordon. Mrs. Gordon was duly appointed the guardian of her two children, and, as such, took into her possession the slaves allotted to them, and as such held them, up to the time of her death in 1854. From the time of the partition, the possession of Mrs. Gordon and her children was adverse to the claim of John C. Gordon, who is still alive. His claim is barred by the statute of limitations.
Mary L. Gordon died before her mother, whereby the latter, together with Isa Gordon, became entitled to her personal property as her next of kin. Mr. Barber applied to be appointed administrator upon her estate, when the usual order was made appointing him her administrator, upon his entering into bond with security according to law. He took the usual oath and executed an administration bond, which, however, was never executed by his sureties. He doubts whether he is in law duly appointed. The following cases fully establish the validity of his appointment: Spencer v. Cahoon, 15 N.C. 225, and 18 N.C. 27, and Davis v. Lanier, 47 N.C. 307.
(355) Mrs. Maria L. Gordon died in 1854, after having made her last will and testament, in which she leaves to her brother Thomas F. Jones, and who has duly qualified as her executor, a favorite negro man by the name of Jack Blount. In the succeeding clause she bequeaths as follows: "I give all my other negro slaves to the American Colonization Society, provided said negroes are willing to go to Liberia, and provided the Colonization Society is willing to receive them, and send them to Liberia."
The question is presented, whether the bequest to the Colonization Society embraces the interest which Mrs. Gordon had, as one of the next of kin, in that portion of the slaves which fell to Mary L. Gordon on the partition in 1845, or whether it is confined to those which were allotted on that partition to Mrs. Gordon. We are of opinion that the bequest of emancipation extends, not only to all the slaves of Mrs. Gordon and their increase held by her in severalty, but also to the slaves which may be allotted to the plaintiff as her representative, upon a partition among the next of kin of Mary L. Gordon. Cox v. Williams, 39 N.C. 15.
The Colonization Society has agreed to receive the negroes upon the terms proposed in the will, and the slaves have agreed to go to Liberia.
The plaintiff is entitled to a decree for the partition of the slaves held in common by Henry W. Barber as administrator of Mary L. Gordon and her sister Isa, and also to a decree for partition of the slaves which shall be allotted to the administrator, between said administrator and the plaintiff; and also to a decree that the plaintiff deliver over to the American Colonization Society all the slaves embraced in this opinion as of the property of Mrs. Mary L. Gordon.
Per curiam.
Decree accordingly.
(356)