Williamson v. Daniel

[Devise.] An absolute bequest of certain slaves to P. H. is qualified by a subse- • quent limitation over, that if either of the testator’s grand children, P. H., or J. D. A., should die without a lawful heir of their bodies,, that the other should heir its estate, which converted the previous estate into an estate fail: and there being no words in the will which restrained the dying without issue to the time of the death of the'legatee, the limitation over was held to be on a contingency too remote. The rule of partus sequitur ventrem, is universally followed, unless there be something in the teuns of the instrument which disposes of the mother, separating the issue from her.

APPEAL from the Circuit Court of Georgia, • The controversy in this cause arose out of the following clauses in the wii! of James Daniel: “ 1 lend my wife twenty-one negroes,” naming them, aud also certain lands, “ during her natural life.” ' And subsequently, “ I give and bequealh unto my grand daughter, Patsy Hendrick, three negroes, viz: .Toe, Parker, and Willis — 1 also give her one half of the negroes I have lent my wife, to her and her heirs for ever. I give and bequeath unto my grandson, Jesse Daniel Austin,- son of Betty Austin, one half of the negro.es 1 have .lent-my wife, after the death of my wife, Nancy Daniel. Now my will is, that if either of my grand children, Patsy Hendrick, or Jesse Daniel Austin, should die without á law~ ful heir of their bodies, that the other should heirits estate.” Jesse Daniel Austin, (now called by special act Jesse -Austin Daniel,) survived Pasty Hendrick ; and after the death of Nancy Daniel, the widow of the testator, took into possession all the negroes bequeathed to her during her life, Patsy Hendrick died about the year 1805, intestate, and without, heirs .of her body, being at the time of her death an infant about nine years old, leaving Robert Hendrick, her lather, and Louisa Hendrick, her half sister, by the father’s side, now Louisa Gibbes, one of the complainants, her next «of kin. Robert Hendrick died in 1814, having first made his will, bequeathing his estate to the said Louisa, his daughter, and his wife Mary, now Mary Williamson, also .a complainant. Some of .the slaves, to wit, Sally and herchildren, 'were born in the lifetime of Nancy DanieL* The Court below determined that the limitation over was too remote, and decreed or.; half the slaves to the representatives of Patsy Hendrick, the complainants. It also decreed that the slaves, Sally and her children, did not belong to the estate of the tenant for life. The defendants appealed to this Court.