Martin County NcArchives Court.....Elizabeth Biggs Et Al, John A. Smithwick V. 1840
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Source: N C Reports
Written: 1840

John A. Smithwick v. Elizabeth Biggs et al

A testator, after bequeathing certain negroes to his wife for life, or during 
widowhood, bequeaths as follows: "I wish for the negroes lent to my wife, if 
they do not behave, to be hired out. I also wish for all the negroes not given 
to be hired out as soon as they will bring anything. And after the death of my 
wife or marriage, I want all my property not given away to be equally divided 
among my girls." The negro for which this action was brought, was one of those 
directed to be hired out. Held that the daughters had only an interest in 
remainder after the death or marriage of the widow, and that therefore the 
plaintiff, who claimed under a conveyance from the husband of one of the 
daughters, could not bring trover for the negro during the lifetime of the 
widow, or while she remained unmarried.

This was an action of Trover for the conversion of a negro woman named 
Anesley, tried at the Fall Term, 1840, of Martin Superior Court, before his 
honor Judge Hall. Upon a case agreed, the court decided that the plaintiff's 
action could not be sustained; whereupon he submitted to a nonsuit and 
appealed to the Supreme Court. The facts of the case are stated in the opinion 
of the court.

Badger for the plaintiff
Biggs for the defendants

NC Supreme Court Judge Daniel - This was an action of Trover to recover the 
value of a slave, named Anesley. Plea, not guilty. In the year 1824, Noah 
Perry made his will, and after several other devises and legacies, devised 
lands and three slaves (James, Hannah and Dempsey) to his wife Molly Perry for 
life or widowhood. Then comes this clause in the will: "I wish for the negroes 
lent to my wife, if they do not behave, to be hired out. I also wish for all 
the negroes not given to be hired out as soon as they will bring anything. And 
after the death of my wife or marriage, I want all my property not given away 
to be equally divided among my girls." Anesley is one of the slaves directed 
to be hired out. The testator did not direct how the hires of the young 
negroes should be disposed of. The defendant is the daughter of the testator, 
and was the wife of Joseph Biggs. In the year 1830, Joseph Biggs by deed 
conveyed to the plaintiff "his undivided part of the negroes willed to his 
wife by Noah Perry after the death of Molly Perry, the widow." In the year 
1837, the widow, executor and daughters of Noah Perry, by a parol agreement, 
divided the said property, and the slave Anesley fell to the defendant. She 
took her into her possession and converted her to her own use, before the date 
of the plaintiff's writ. Molly Perry, the widow is yet alive. The court was of 
the opinion that the plaintiff could not recover. He was nonsuited and 
appealed.

That the testator did not contemplate a present and an immediate bequest to 
his daughters of the young negroes, is to be collected from these words in his 
will, to wit: "I also wish for all my negroes not given to be hired out as 
soon as they will bring anything." And afterwards he proceeds and says "I want 
all my property not given away to be equally divided among my girls." We ask 
when? The testator answers "after the death or marriage of my wife." The 
remainder in the three negroes given to his wife for life composes a part of 
the property not given away. The daughter of course had but an interest in 
remainder in that portion of the property. And we think that the testator has 
made a bequest only in futuro to his daughters of the young negroes; for, as 
to them, the daughters can claim by no other words in the will than those just 
mentioned. It is quite unnecessary for us to decide whether the widow took a 
life estate by implication in the young negroes, or whether the executor was 
to receive the hires during the life of the widow for the next of kin. It 
seems to be clear that the daughters had no right to the possession of the 
young negroes (of whom Anesley is one) until the death or marriage of their 
mother. Joseph Biggs, by his deed in 1830, conveyed nothing more than this 
ulterior interest of his wife. In 1837 Anesley came to the defendant, not by 
force of the bequest in her father's will, but by the parol assignment of the 
temporary interest, which was either in the widow of the testator or his 
executive. The time has not arrived for the plaintiff to claim under his deed. 
The judgment must be affirmed.

Per Curiam
Judgment of nonsuit affirmed

Additional Comments:
In the NC Supreme Court December Term 1840

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