Edgecombe County NcArchives Court.....Spruill, Vs. Spruill 1811-18
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:11 pm

Source: North Carolina Reports
Written: 1811-18

July Term 1812.

ROSANNAH E. SPRUILL and AGNES H. SPRUILL, by their Next Frend, v. LAIS 
SPRUILL, Executrix of the Last Will of BENJAMIN SPRUILL, Deceased.

From Edgecombe.

A loaned certain slaves to his son-in-law B, and afterwards by his last will 
gave these slaves to B's children, then infants. B then made his will, and 
bequeathed these slaves to his wife until his children should arrive to full 
age, and appointed her executrix. She took possession of the slaves, and the 
executors of A there assented to the legacy to B's children. The possession of 
the slaves by the executrix of B is not such an adverse possession as to 
prevent the assent of the executors of A from vesting the legal title to the 
slaves in B's children. It is not necessary that executors should have the 
actual possession of legacies when they assent tO them.

This was an action of detinue for slaves, and it appeared in evidence that 
Peter Hines, the father of plaintiffs' mother, loaned to the plaintiffs' 
father, soon after his marriage, the negro slaves in question. The mother died 
and the father married a second wife. Peter Hines then made his will, and gave 
to the plaintiffs the said slaves. During the life of the father, as well in 
the lifetime of his first wife as after his intermarriage with his second, he 
acknowledged the plaintiffs' title under the will of Peter Hines, of which 
will he had a copy. The father made his will and bequeathed the slaves to the 
plaintiffs, together with some other property. In a latter clause of his will 
he bequeathed as follows: "I lend the whole of my property above mentioned, of 
every kind, to my beloved wife, Lais Spruill, for the purpose of raising, 
clothing and educating my children, and also raising the young negroes that 
are or may hereafter be born in my family, free from any charge hereafter to 
be made against my children heretofore named, until my children arrive to 
lawful age or marry." And he appointed the defendant executrix of his will, 
who proved the same at August Term, 1808, qualified and took upon herself the 
burthen of executing the same. She took possession of the property as 
executrix and continued in possession thereof until the time the executors of 
Peter Hines, the grandfather of the plaintiffs, assented to the legacy, which 
was three months before the bringing of this suit.

It appeared further in evidence that when the plaintiffs demanded the slaves, 
immediately before the commencement of this suit, the defendant declared her 
willingness to surrender them up if the plaintiffs would pay a ratable part of 
the debts of their father. The defendant pleaded "non detinet, and the statute 
of limitations." The jury found a verdict for the plaintiffs, and a rule for a 
new trial was obtained, upon the ground that the assent of the executors of 
Peter Hines did not vest in the plaintiffs such a right as enabled them to 
sue, and that the action should have been brought in the name of the executors 
of Peter Hines. The rule was discharged and the defendant appealed to this 
Court.

Hall. J. It is not necessary to inquire how far the assent of an executor to a 
specific legacy adversely claimed by a third person having possession thereof 
would enable the legatee to sue for and recover such legacy in his own name; 
for it does not appear that there was an adverse possesion of the legacy in 
question before the assent of the executors of Peter Hines was given. The 
slaves were loaned, in the first instance, to the father of the plaintiffs, 
and then bequeathed to the plaintiffs. Their right was acknowledged by the 
father during his life; his possession, therefore, was the possession of Peter 
Hines during his life, and after his death that of his executors. The father, 
then, by his will, gave the same property to the plaintiffs. It does not 
follow that he thereby set up a claim to it; for the property had been loaned 
to him, he had been possessed of it for several years, and he might have 
thought that his children, being of tender years at the time of the loan, and 
some of them not born, might not know, when they grew up, in whom the title 
was. He, therefore, confirmed by his will the will of his father-in-law.

The case recites a clause in the will of the father, by which he lends the 
whole of his property to his wife, for the purpose of educating his children, 
and raising the young negroes, until the coming of age or marriage of his 
children. By this clause nothing beneficial is given to the wife; it was 
obviously inserted for the benefit of his children. Although he does not by 
this clause make his wife testamentary guardian, he seems to have had such an 
intent. If he had carried this intent into effect she would have been entitled 
to the slaves, during the minority of the children, unless they had sooner 
married. It seems, however, to have been his wish that she should discharge in 
part the duties of guardian, and she must be considered as taking possession 
of the property for the benefit, of the children. Her possession of it was not 
adverse to their right, and therefore there was no adverse claim at or before 
the time the executors of Peter Hines assented to the legacy. By that assent 
the right of the legatees to sue in their own names was complete—a right which 
no after adverse claim could destroy. It is not necessary that executors 
should have the actual possession of legacies when they assent to them. It is 
sufficient if the legacies be in the possession of third persons, holding such 
possession under them. If, however, the Court were mistaken on this part of 
the case, a new trial ought not to be granted; for complete justice has been 
done by the verdict, and if a suit was to be brought in the name of the 
executors of Peter Hines, it would be for the use of the present plaintiffs, 
and the same verdict would be rendered. Let the rule be discharged.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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