Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-11-22

Opinions of the Supreme Court OF the
State of Tennessee, at Jackson, April
Terms, 1859.

Terms, 1859.
sesy, sr a., vs Young, et al.
dhlsisa bill filed BY the complanants James B. Seay
ana JosephS Seay who are infants to recover of th.
eeIendants, Young and Cowan a slave by the nams
O Lean, and her children, five in number The sup
posed right to exist in complainants IS derived from
me VIII OF their grandfather William Peatross o.
in the year 1908.
They ailege that under said will their mother
Jemima, who was daughter Of said William Pea
tross the testator took life estate in the slave
Leah with remainder TO them. as her ony children
and that the other slaves being the offspring Of Leah
born since the viii took effect they are now entitled
to recover the whole of them, their mother being
dead.
The said viii was made and took effect in the
State OF Nrgina where the testatOr lived and died
/ Somewhere between the years 1925 and 1879 Je-
NINA Peatross, then living, as it is probable arrived
at the age of q years ntermarried IN said county
Of Caroline, with William B. Seay, the father of the
cOmplanants, who are the only issues of that mar
riage; and either shortly before, after the mar
/ der SAID VIII; after which she and her husband,
with said slave. removed TO the county of Haywood
| in this State where the said Jemima departed this
life in the year 1912.
The defendants claim said slaves by purchase,
] made OF the said William b. Seay, the father of
eOmplainants, and husband of Jemima in the year
| 1876.
| They deny that complainants took any remainder
under said BILL and insist that the slave Leah BY the
force OF said WILL become the absolute property of
the said Jemima; and that upon her marriage with
William b. Seay the slave became his, and that he
might lawfully sell them, AMI that they acquired
perfect title And the question is whether complain
ants or defendants have the better title
The clauses of the will upon the construction of
which this contest depenGs,a are as follows towit
"TO my beloved wife, Amy Peatross lend the land
and plantation whereOn / reside, together with
Randall and Milley; also the choice of one fellow
and one woman ofmy estate during her widowhOod:
and at her death, or marriage, the said land or
grOes with their increase TO be equally divided
among my children and surviving heirs of the body
OF those who who may have deceased before that
period except the children of my deceased daugh-
ter, Nancy Haden, to whom in her lifetime, lent
two negroes tO-wit: Abram, a man, and Tempe
girl; and it is nv will and desire that those two ne
groes and their increase be equally divided among
my grand children, BY my daughter Nancy, deeeas-
ed, when they come of age, or marry, or when
either of them marry of age; to this branch
Of my family leave no more Of my estate.
Item: II is my will and desire, that my wife keep
possession of the property of such Of my children
as may be under age without paying hire as
pensation for maintaining and feducating said chill
dren; and as they arrive at proper age or marry,
my executors are authorized and required to allot
to such child, or children, an equal part with my
son Richard, who has received negro boy, Jesse,
and girl, Amy, horse, saddle, and bed and .urni-
ture; also my daughter Jane, who has received a
negro woman, Rachel, and child, Hulda. horse
and saddle, bed and furniture; also my daughter
Polly, give a negro boy Moses, and a girl. Judy,
horse and saddle, bed and furniture, none of which
she has received except bed and furniture. But it,
when such allotment is made there should not be
enough to give to each of those children, who may
be of age or marry, an equal portion with my be-
fore mentioned children. Richard, Jane and Polly,
in that they will only receive proportion of
what may be- exclusive of the part left my wife, at
whose DEATH or marriage desire that my whole
estate be equally divided among the following chill
dren, q mean and wish to be clearly understood be-
fore mention them.) viz 1t is my express meaning
and wish that all my children share alike in my
general estate, and all those who have not received
any part thereof, to be made equal with my
children before mentioned viz: Richard, Jane and
Polly to whom have lent and given already, near,
orq1te as much except my daughter Polly, who
has only received the bed and furniture before men
toned to-wit Richard, Matthew, William. Jane,
Amy. Barbara, Walter. Sally, Samuel Betsy. Susan
nah Rebecca, and Jemima, TO them and their lawful
issues, or the survivors of them as before stated
forever and if any Of my children should die before
they Of age (Or in that if ehild) it is
my will and desire that their part parts be equal
ly divided among the survivors of them, or their
lawful issue. except the children of my deceased
daughter Nancy, TO whom have given all intend. =
The testator, then, in order that there might be
no difficulty in making equal division among his
children. when the period fer final division shOuld
come empowers his executors to assess the value
Of the property already given of to his children,
to select three disnterested men to do so. And
lastly, he gives to his wife, during iife.or widow
hood. certain chattle property and provides at her
death, or marriage, the same to be divided as be-
fore stated
Its probable from this record. that Amy PeatrOss,
the widow OF the estator, survived the marriage of
her daughter Jemima but died before the death Of
the said Jemima At all events it is shown that the
slave Leah was allotted to the said Jemima under
the second clause Of the viii upon her coming Of
age, or marriage and not IN the general division of
the estate.
The can, we think, be no doubt, upon a proper
construction of this will, that cOmpainants took no
interest whatever in the slave Leah and that in
the events that have happened she became the abso
lutte estate of their mother. the said Jemima. and
passed by the marriage, to her husband William B.
S9ay, who had right to sell her and her offspring
to defendants.
In the construction of this will all its parts are to
be taken with reference to each other and the in
tention of the estator collected from the entire in
strument-l Sneed, 1884,
The true meaning of the first clause of the will
undoubtedly is that the widow of the testator is to
have an estate for life, widOwhOOd, in the land
and slaves given her; and at her death or marriage
| the same, with increase, Il to be equally divided
among such Of the testators children Bayth be
lrinq and the surviving issue of such of his chill
ren as NAV have died before that period except the
! children Of his daughter Nancy.
If child died before the period of division, viz:
| the death marriage OF the testatOF S WIDOW,
leaving children who remained alive until the period
| of division then they took the share Of deceased
child but if the child left no children, or there
were none at the time of DIVISION the share of that
child went to the children, and the surviving issue
/ of such as may have died before that period
| 1t is manifest that no remainder intended TO
be created in favor of any of the grand children of
| the testator whose parents we're living when the
particular estate of his widow ceased, and that un-
| der this clause complainants can claim nothing,
their mother having survived the widow of the
| testat)r.
1t is equally plain the second clause of the will
hath this extent and no more The desire to all his
! children IN that clause. and the words "tO them
| and their lawful issue, the survivors of them
as before stated, forever have precisely this
meaning.
The words "as before stated" refer expressly to
the first clause and can have other meaning than
that the children alive at the period of the final di-
vision and the children then living of such may
| have died except the children of Nancy," are TO
| take an absolute estate.
These words controlled the estate to be divided at
/ the death or marriage of the widow and then to
provide for the of children who might be un-
der age, or unmarried at the period of general di-
| vision 1.-THE death or marriage of the widow being
| possible at any time) and who might die be-
i fore they come of age married, or the case
of married children who should die without child,
| and to cover the entire share Of each child
/ in the estate the will further provides ~and
! if any of my children should die before they come
of age. or marry, in that case haze no child d. e.
! in case of marriage,) it is my will and desire that
| their part or parts, be equally divided among the
survivors of them and their lawful ISSUE except the
children of my daughter Nancy, to who have given
| all intend
It will thus be manifest that JemiT-as share was
an absolute interest unless she died under 81 un-
married, without issue, upon which events there
was an executory desire in favor of her surviving
brothers and sisters and the issue of those deceased
But there remainder of interest TO her child
rem in the events that have happened and the ute
rior interests 70 her share are all defeated be
cause the events on which they depended never oc
| CURED.
.wRIGHT.
Test: NJ. D. WEIGH, Clerk.
CHARLES II. HALL,