Opinion
(June Term, 1841.)
1. Where a testator bequeaths a negro woman and her increase, and there are no other words in the will to explain his meaning, only the increase born after the death of the testator will pass.
2. Where the jury find for the defendant upon the general issue, this Court will not inquire into the correctness of the judge's charge as to the other plea of the statute of limitations.
CASE tried at Spring Term, 1841, before Dick, J., when there was a verdict rendered for the defendant, and a judgment pursuant thereto, from which the plaintiff appealed. the plaintiff declared in two counts: first, for the trover and conversion of certain slaves; secondly, for a tortious act done by the defendant, to the injury of the plaintiffs, (461) during the continuance of a life estate in the said slaves, the plaintiffs being entitled in remainder, after the death of the tenant for life. The plaintiffs, on the trial, abandoned the count for trover. The pleas were the general issue and statute of limitations.
No counsel for plaintiff.
Strange for defendant.
The facts of the case are sufficiently stated in the opinion of the Court.
This was an action on the case. Pleas, general issue and statute of limitations. Thomas Foxhall, in July, 1791, made his will, and bequeathed a slave by the name of Fan, and her increase, to his daughter, Joanna Sergener, for life, remainder to her children. The will was proved at August Court, 1792. The plaintiffs are all the remaindermen but one; and the action is against the defendant (who had purchased the life estate of Joanna Sergener, and also the interest of one of the children in remainder), for selling the slaves, and sending them beyond the limits of the State. The slaves in controversy are the issue of Diana, who is the daughter of Fan. The defendant contended (1) that the slave Fan had been given to Joanna Sergener by her father in his lifetime, and therefore did not pass by his will; (2) that Diana had been born of Fan before the death of the testator, and, therefore, did not pass by the will to Mrs. Sergener and her children; and (3) that as he was a tenant in common, in remainder with the plaintiffs, this action could not be maintained against him. The judge left the two first points to the jury upon the evidence, with instructions to find for the defendant if either of them were true in fact. But that if the jury should find against the defendant upon both of these points, then on the third point he charged them that a sale of the slaves by the defendant, to be carried out of the State, was equivalent to a destruction, and the action was maintainable. Upon the statute of limitations the judge instructed the jury that it began to run from the time the tortious act or acts (the sales of the slaves) were done by the defendant, (462) and not from the death of Joanna Sergener, the tenant for life. The jury returned a verdict upon both issues in favor of the defendant. There was a judgment for the defendant, and the plaintiff appealed.
The charge of the judge upon the general issue was as favorable to the plaintiffs as they could reasonably have desired. He said that if the slave Fan was the testator's property at the time of his death, and Diana was born of Fan subsequent to that time, then the plaintiffs were entitled to maintain their action against the defendant for selling the slaves out of the State, although at that time he was a tenant in common with them; that if Diana was born after the date of the will, but before the death of the testator, she did not pass to Mrs. Sergener and her children, under the words, "Fan and her increase." The will speaks at the death of the testator. There are no words in it, that we can discover, to denote an intention of the testator that the increase of Fan, born before the testator's death, should go to Mrs. Sergener and her children; and without some other words in the will denoting a different intention, the word increase, per se, is to be considered as referring only to such children of the slave Fan as should be born after the legatees became entitled to her. We discover no error in the charge of the judge upon the general issue of which the plaintiff can complain, and it is unnecessary to inquire whether the defendant has cause to except to it. And as the jury have found for the defendant upon that issue, it becomes immaterial to inquire, and this Court will not examine, whether the charge was right or wrong upon the other issue, the statute of limitations. Morrisey v. Bunting, 12 N.C. 3; Bullock v. Bullock, 14 N.C. 260.
PER CURIAM. No error.
Cited: Morrow v. Alexander, 24 N.C. 390; Stultz v. Kizer, 37 N.C. 541; Turnage v. Turnage, 42 N.C. 128; Lowe v. Carter, 55 N.C. 385; Higdon v. Chastaine, 60 N.C. 213.
(463)