Opinion
(December Term, 1842.)
1. The slaves of a female ward will go to the representatives of her husband, though he married while the slaves were hired out by the guardian, and died during the term for which they were hired.
2. Where such slaves are held in common with others to whom the same person is guardian, and after the marriage, by agreement between the husband and guardian, the slaves are again hired out and the husband becomes the hirer of one and gives his note for the hire to the guardian, this does not affect the right of the husband or his representatives.
THIS cause, having been set down for hearing upon the bill and answers, was by consent of parties transferred from GUILFORD Court of Equity, at Fall Term, 1842, to the Supreme Court.
The facts of the case are stated in the opinion delivered in this Court.
No counsel for plaintiff.
J. T. Morehead for defendants.
This is a bill for an account of the hires of a number of slaves and a division of the slaves, and that the plaintiff may receive one-fourth part of the hires and slaves. The cause was set for hearing upon the bill and answers, and transferred to this Court. Upon the pleadings the case appears to be as follows:
Levin Caulk died intestate, leaving a widow and three infant children, of whom one was a daughter, Elizabeth, who afterward intermarried with Ross, the intestate of the plaintiff. The defendant Doak administered on the estate of Caulk, and, after discharging the debts, held the slaves in question (349) subject to distribution among the widow and three children. He then became the guardian of the children in 1840, and by the assent of the widow the negroes remained undivided, and he (Doak) hired them out for 1841, for the benefit of the widow and his wards, and took bonds for the hire, payable to himself as guardian. During 1841 Ross intermarried with Elizabeth, then and still an infant, and in the beginning of 1842 it was agreed between Ross and the guardian that the negroes should not then be divided, but that Doak should again hire them for the benefit of the owners and take the bonds payable to himself as before. Under that agreement Doak hired out the negroes for 1842, when Ross himself hired one of them and gave his bond therefor to Doak, as other persons did. During 1842 Ross died intestate, and the plaintiff became his administrator and filed this bill against Doak, Mrs. Ross, Mrs. Caulk and the other two children. Upon those facts the defendants raised the objection that the husband did not reduce the negroes into his possession, and that upon his death they survived to Mrs. Ross.
The facts of this case are so precisely those of Pettijohn v. Beasley, 15 N.C. 512, that, independently of the agreement of Ross to the hiring of 1842, that case is decisive of this. But that agreement makes it still plainer, for, as to the share of his wife, it made Doak the husband's agent to make the hiring. It was faintly argued that giving his bond for the hire of one of the slaves made a difference. But it certainly does not, for it is nothing more than one tenant in common hiring a part of the common property and giving a security therefor to a common trustee for all the parties. The plaintiff must then have the decree he prays.
PER CURIAM. Decree for the plaintiff.
Cited: Caffey v. Kelly, 45 N.C. 50; Fowler v. McLaughlin, 131 N.C. 210.
(350)