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McKinley v. Scott

Sandy McKinley v. . Alexander C. Scott.

McKinley v. Scott, 49 N.C. 197 (1856)
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Court
Supreme Court of North Carolina · State Highest Courts
Decided
December 5, 1856
Judges
Battle
Citations
49 N.C. 197
Headnotes
A bequest of a slave for the life of the legatee, without any limitation over, passes only a life-estate to such legatee. The assent of the executor extends no further than to the life-interest, and the reversion is in the executor, which he may recover after the falling in of that interest.
Summary
ActioN of detiNxie, tried before his Honor, Judge Ellis, at the Spring Term, 1856, of Cabarrus Superior Court. The action, was brought to recover a slave, named Lizzie, and her child. Robert Cochran, who was the owner of Lizzie, made a will, and died in 1855. He bequeathed the slave in question to his grand-daughter, Martha Ann, dv/rmg her natmrdl life, and made no further disposition of the slave or her increase. Martha Ann, with the assent of the executor, took possession of the slave, Lizzie, and having intermarried with the defendant, A. C. Scott, the slave went into his possession, and has so remained ever since, having, in the mean time, borne the child, John. Mrs. Scott died in 1851, and the plaintiff, who is the executor of the executor of Robert Cochran, demanded the property, and on defendant’s refusal to surrender it, this suit was brought. These facts being submitted to his Honor in a case agreed, he gave judgment for the plaintiff, whereupon the defendant appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Battle

Battle, J.

There are three decisons of our Courts directly in point in favor of the plaintiff’s recovery, to wit, an Anonymous case in 2 Hay. Rep. 161 , James v. Masters, 3 Murph. Rep. 110 , and Black v. Ray, 1 Dev. and Bat. Rep. 334. These cases establish, beyond question, that the bequest of a slave for life, without limiting the remainder over, passes only a life-estate to the legatee; that the assent of the executor extends no further than to such life-interest; and that the reversion remains in the executor, which he may assert after the death of the life owner. The present plaintiff is the executor of the first executor, and consequently represents the first testator, and may maintain the action. If the defendant has any claim for one-third part of the slave in question, and her issue, he must assert it at the proper time, as the administrator of his wife.

Pek Cukiam. Judgment affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1911: 21927: 11940: 119112026peak 1911 · 2

Relies on it most ⓘ

  1. Peele v. Powell156 N.C. 553 (1911)
  2. Peele v. Powell73 S.E. 234 (N.C. 1911)
  3. In re Estate of John Stephan194 So. 343 (Fla. 1940) · Dissent
  4. Jordan v. Sigmon140 S.E. 620 (N.C. 1927)

Most recent

  1. In re Estate of John Stephan194 So. 343 (Fla. 1940) · Dissent
  2. Jordan v. Sigmon140 S.E. 620 (N.C. 1927)
  3. Peele v. Powell73 S.E. 234 (N.C. 1911)
  4. Peele v. Powell156 N.C. 553 (1911)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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