McKinley v. Scott

Full title: SANDY McKINLEY vs . ALEXANDER C. SCOTT

Court: Supreme Court of North Carolina

Date published: Dec 1, 1856

49 N.C. 197 (N.C. 1856)

Opinion

December Term, 1856.

A bequest of a slave for the life of the legatee, without any limitation over, passes only a life-estate to such legatee. The assent of the executor extends no further than to the life-interest, and the reversion is in the executor, which he may recover after the falling in of that interest.

ACTION of DETINUE, tried before his Honor, Judge ELLIS, at the Spring Term, 1856, of Cabarrus Superior Court.

The action was brought to recover a slave, named Lizzie, and her child.

Robert Cochran, who was the owner of Lizzie, made a will, and died in 1855. He bequeathed the slave in question to his grand-daughter, Martha Ann, during her natural life, and made no further disposition of the slave or her increase. Martha Ann, with the assent of the executor, took possession of the slave, Lizzie, and having intermarried with the defendant, A. C. Scott, the slave went into his possession, and has so remained ever since, having, in the mean time, borne the child, John. Mrs. Scott died in 1854, and the plaintiff, who is the executor of the executor of Robert Cochran, demanded the property, and on defendant's refusal to surrender it, this suit was brought.

These facts being submitted to his Honor in a case agreed, he gave judgment for the plaintiff, whereupon the defendant appealed.

Wilson, for plaintiff.

Osborne, for defendant.

BATTLE, J.

There are three decisions of our Courts directly in point in favor of the plaintiff's recovery, to wit, an Anonymous case in 2 Hay. Rep. 161, James v. Masters, 3 Murph. Rep. 110, and Black v. Ray, 1 Dev. and Bat. Rep. 334. These cases establish, beyond question, that the bequest of a slave for life, without limiting the remainder over, passes only a life-estate to the legatee; that the assent of the executor extends no further than to such life-interest; and that the reversion remains in the executor, which he may assert after the death of the life owner. The present plaintiff is the executor of the first executor, and consequently represents the first testator, and may maintain the action. If the defendant has any claim for one-third part of the slave in question, and her issue, he must assert it at the proper time, as the administrator of his wife.

PER CURIAM. Judgment affirmed.