Opinion
03-01-1817
Merrymans v. Merryman and Others
The controversy in this case turned upon the construction of the Will of Peter Sublett deceased. The Testator made sundry devises and bequests to his sons, respectively; concluding each clause with the words, " to him and his heirs forever." He afterwards gave to his daughter Mary Merryman five Negroes, and their future increase, " to her and her children forever." Under this clause, her husband, Francis Merryman, had possession of the slave, and sold or otherwise disposed of them, as his absolute property. After her death, her children Peter Merryman and others filed their Bill, in the Superior Court of Chancery for the Richmond District, against Francis Merryman, and the purchasers under him, for a discovery of the names, ages and sexes of the Negroes in question, held by each of them, for an account of their profits, delivery of possession, and general relief.
The Bill was taken pro confesso as to Francis Merryman, who was out of the Commonwealth, and against whom an order of publication was executed.
The plaintiffs contended, it was obvious from the other parts of the Will, that the Testator knew the distinction between " children" and " heirs," and meant, in the clause, bequeathing the Negroes to Mary Merryman and her children, that they should take an interest in the said slaves distinct from her's. The purchasers, by their Answers, among other things, insisted, that the word " children," in the passage alluded to, was intended as a word of limitation, and not of purchase.
Chancellor Taylor dismissed the Bill as to those defendants; from which Decree the plaintiffs appealed.
OPINION
Judge Roane pronounced the Court's opinion.
" The Court is of opinion, that, although a devise to a married woman, 'and her children, and their heirs,' will give a joint estate of inheritance to her and such of her children as are living at the time; and although the term 'children' is not to be taken as synonymous with issue, except to effectuate the manifest intention of the Testator; the said term is so to be taken in this case; it not being intended to denote the devisee or devisees, who were to take, nor to reduce the portion of the interest of the mother in and to the slaves, before given to her by the same clause, but to declare the duration of her interest therein to be to her and her children forever; that is to say, to her and her issue."
" On the ground of this construction, the Court approves the Decree dismissing the Bill, and affirms it."