Opinion
June Term, 1806.
A bequeathed two negro slaves by name to his widow during life; and in a subsequent clause of his will he bequeathed "the negroes therein mentioned, Pat., King. etc. (naming them, but omitting the names of the two given to his widow during life), to five of his children," and adding that "the above that are not heretofore given away shall be equally divided among his said children." The negroes in the first clause are included in the second clause of the will and after the death of the widow go to the five children — two of the children having died intestate before a distribution of the negroes was made, the next of kin cannot have a decree for distribution of their shares of the said negroes, against the administrator de bonis non cum testamento annexo of the testator until the representatives of the deceased children are made parties.
JOHN BRANCH, by his last will, gave to his wife, Mary, "one negro fellow by the name of Curtain, also one negro girl by the name of Queen, during her natural life, and no longer"; and by a subsequent clause in his will he directed "that the negroes therein mentioned, Patty, King, etc. (not mentioning either Curtain or Queen), should be divided between his children, Polly, Bowen, Thomas, Norman and Rebecca, when they should arrive at age or marry," adding that "the above that are not heretofore given away should be so divided." The testator appointed his son Burrel Branch and two others executors of his will, who after his death proved the same and undertook the execution thereof; and Benjamin Branch, the survivor of the said executors, having died intestate, administration de bonis non with the will annexed was granted to Bowen Branch, the defendant in this case. Polly and Rebecca, two of the testator's children and legatees as aforesaid, died unmarried and intestate, leaving four brothers, Burrel, Bowen, Thomas and Norman, and one sister named Elizabeth, them surviving. Administration of the estate of Burrel Branch, deceased, was granted to Bynum and Parker, who brought this bill in equity against Bowen Branch, the administrator de bonis non of John Branch, deceased, and therein, claimed on behalf of their intestate his distributive share of the negro slaves aforesaid, as one of (133) the next of kin of his deceased sisters, Polly Branch and Rebecca Branch. Upon the hearing of the cause two questions arose which were referred to this Court: 1. Whether the negro slaves Curtain and Queen (mentioned in the first clause of the will of John Branch, deceased), bequeathed to the widow during life, are included in the second clause of the will. 2. Whether the complainants can sue for the shares of Polly and Rebecca Branch, and claim a distributive part thereof on behalf of their intestate, without having the administrators of said Polly and Rebecca before the court.
From Halifax.
We are of opinion that the negro slaves mentioned in the first clause of the will, after the death of the widow, belonged to the children named in the second clause; but that the representatives of Polly Branch and Rebecca Branch must be made parties before complainants can have a decree for a distributive share of their estate.
Cited: Martin v. McBryde, 38 N.C. 533; Coppersmith v. Wilson, 104 N.C. 32.