Iredell County NcArchives Court.....William Emberson, David Creswell V. 1848
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Source: Nc Reports
Written: 1848

David Creswell & Al vs. William Emberson, 1848

A. bequeath a slave to his wife for her life, and, after her death, to be 
emancipated. Held, that though the provision for the emancipation of the slave 
was void, yet the slave did not belong absolutely to the wife, but, after her 
death, went to the next of kin, or passed by the residuary clause, if there 
was one.

Cause removed from the Court of Equity of Iredell County, at the Spring Term 
1848.

In the year 1831, Adam Moore made his will, in which he gave to his wife, 
Hannah Moore, the whole of his property, after the payment of his debts, 
during her natural live, except such part as she might choose not to retain, 
and he directed such part to be sold by his executors, and the proceeds to be 
put out at interest, until her death, and then to be divided.

He then gives her one third of the proceeds of this sale, and the whole of the 
increase of the estate, except the negroes. He further directs, that, after 
the death of his wife, his boy, George Washington, shall be emancipated. 

The defendant, Emberson, was appointed one of the executors. Mrs. Moore died, 
and by her last will, appointed the plaintiffs her executors, and the bill is 
filed for an account; and among other things, charges that the testatrix, by 
her will, gave to the plaintiff, Creswell, the boy Washington to be 
emancipated, as soon as the laws will permit; that the defendant, after the 
death of Mrs. Moore, sold the boy Washington, as the property of his testator, 
and that, during the life of the testatrix, Mrs. Moore, be hired out, for 
several years, a valuable negro boy and received a large sum therefore, and 
claimed the money as belonging to the estate of Adam Moore.

The answer of the executors of A. Moore admits the contents of their 
testator's will to be, as set out in the bill, the sale of Washington, and the 
hiring out of Stephen, and that the amount of his hire is in their hands. They 
aver, as to Stephen, that, apprehending that the perishable property and the 
other property directed to be sold would not pay the debts, they obtained an 
order from the County Court to sell Stephen, but as the deficiency was not 
large, and the negro was willed to Mrs. Moore for her life, at her request, 
instead of selling him, they hired him out for the purpose of paying the debts.

No more of the pleadings are set out than is necessary to bring in view the 
question submitted to this Court at this time.

The bill was filed at September Term 1841 and the answer at Spring Term 1843. 
Upon the hearing a decree for an account was made, and, at the same term, by 
an order of Court, the case was referred to a commissioner. The order of 
reference was as follows: "on motion of the plaintiff's counsel, it was 
ordered, that this cause be referred to J. P. Caldwell, to take an account and 
report to the next Court of and concerning the assets of Adam Moore, deceased, 
&c., the amount of that portion of it belonging to the late Hannah Moore, and 
that he report the facts in relation to the bequest and sale of the slaves 
Washington, &c."

At Spring Term 1848 the commissioner made his report, and, among other things 
reported,

1st. That the negro boy Washington belonged to the plaintiff, Creswell, and, 
he, now assenting to the sale, is entitled to recover the amount he sold for 
with interest, as set forth in the report.

2nd. That as to the hire of Stephen, I decide that the plaintiffs, as the 
executors of Hannah Moore, have a right to recover the same with interest as 
stated.

3d. Of the growing crop of corn and hay, I decide they properly belong to the 
estate of Hannah Moore, and that the plaintiffs had a right to recover the 
same.

To this report the defendants filed the following exceptions:

1st. That the commissioner has adjudged the title of the slave Washington to 
be in the plaintiff Creswell, and has accordingly charged for the said 
plaintiff the value of the slave against the defendant, whereas the title to 
the said slave was in the next of kin of Adam Moore, and the plaintiffs are 
not of the next of kin.

2nd. That the commissioner has charged the defendants with the hire of the boy 
Stephen, and adjudged the value thereof to the plaintiffs, when the same 
constitutes no charge against the estate of Adam Moore, and should form no 
part of this account, the plaintiff's remedy being wholly a legal one, if any, 
against the defendants individually.

3d. That the defendants are charged in the said account with the sum of $288 
for certain corn and hay, belonging to the plaintiffs, as executors of Hannah 
Moore, and which they should have taken care of, but for which the defendants, 
as executors of Adam Moore, are not liable to account in this suit, the 
plaintiffs having a clear remedy at law.

The 4th, 5th, and 6th exceptions were abandoned, as not being supported by 
testimony.

Avery, Alexander and Bynum for the plaintiffs
Osborne, Guion and Gaither for the defendants

[NC Supreme Court]
Nash J. The first exception is sustained. The plaintiff claimed the negro 
Washington under the will of Mrs. Moore. She had but a life estate. In making 
her will she doubtless thought, and the commissioner has acted under a similar 
impression, that, as the negro Washington was given to her for life, and the 
subsequent disposition was void, she took an absolute estate in him under the 
will of her husband, Adam Moore. It is true that the direction given for his 
emancipation was void as being contrary to law, but Mrs. Moore's interest in 
him was not thereby enlarged. By the express provisions made for her, she has 
an estate but for her life. With her death that interest ceased - she had 
nothing to leave to another. Washington, therefore, upon her death, passed 
either to the next of kin of Adam Moore, or sunk into the residuum, if there 
was one. The latest case on the subject, and we hope it will be the last, is 
that of Lemond v. Peoples, decided at this term. The slave, Washington, 
therefore, or his value, is in the hands of the defendant, Emberson, as of the 
estate of Adam Moore.

The 2nd exception is overruled. It appears, that Stephen was one of the 
negroes left to the widow during her life, and to her also the testator gave, 
after the payment of his debts, the whole increase of the estate except the 
negroes. The defendant, Emberson, admits, that he did hire out Stephen for the 
purpose of paying debts; that, with that view, he obtained an order from the 
County Court to sell Stephen, but at the request of Mrs. Moore, as the balance 
of the debts to be paid was small, he, instead of selling, hired him out. It 
turned out afterwards, that the hire of Stephen was not required to pay the 
debts and the money is in his hands. The consent of the executor to a legacy 
is necessary. He is not obliged to part with the property, until the debts of 
the testator are discharged, and it appears, that the defendant did not assent 
to the legacy as to Stephen, but neither Stephen nor his hire became 
necessary, and the widow was entitled under the will to both. The hire of 
Stephen is in the hands of the defendant Emberson, for the use of the 
plaintiffs, representatives of Mrs. Moore.

The third exception is overruled. The exception is, that the hay and corn, for 
which the sum of $288 is allowed by the commissioners, belong to the 
plaintiffs, as executors of Hannah Moore, but for which the estate of Adam 
Moore is not liable to account in this suit, the plaintiffs having a clear 
remedy at law. The question attempted to be raised is not open. It was 
disposed of by the decree, made on the hearing for an account. The other 
exceptions are overruled, there being no evidence to support them. The report 
of commissioner Caldwell is in all things confirmed, except as to the slave 
Washington.

Per Curiam
Decree accordingly

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