Cox v. Harris

Goldsborough, J., delivered the opinion of this court. The record in this case shows, that a certain William W. Cox, late of Charles County, deceased, died in the year 1857, having made his last will and testament, which, after his death, was admitted to probate in the orphans court of that county, in September of the same year. By the 2nd clause the testator devises and bequeaths as follows: “I devise and bequeath'tliat my negro woman Kitty, and her children, John, Catharine, Sarah and Charles, shall work for themselves, by paying my executors annually, one cent per year hire;” and by the 5th clause, he devises and bequeaths as follows: “the balance of my property, real, personal and mixed, shall be equally divided between Sarah Harris, Marbury Harris, Samuel N. Cox and Mary Cox.” - And “lastly, I constitute and appoint my sister, Mary Cox, and Samuel N. Cox, my sole executors of this, my last will and testament.” Samuel N. Cox, one of the executors named in the will, renounced the executorship, and letters of administration, with the will axnexed, were granted to Mary Cox and Richard T. Tubman, the defendants below and appellants, who took upon themselves the burden of the administration, and it is admitted by the solicitors for the complainants and defendants in this record, that “the administrators of William W. Cox, have paid over to the complainants their proportion of all the personal estate belonging to William W. Cox, deceased, except the portion of negroes Kitty, John, Catharine, Sarah and Charles,” which the complainants claim under the will, and the right of the complainants thereto is denied by the answer. ²⁹ The bill of complaint was filed by Sarah Harris, Marbury Harris and Samuel N. Cox, on the equity side of the circuit court for Charles county, on the 2nd day of November 1858, and amongst other allegations, the complainants “especially charge, that negro woman Kitty and her children John, Catharine, Sarah and Charles, mentioned in the second clause or item of said will, by the true construction of the same, belong to the complainants and Mary Cox, as residuary legatees. of said testator, William W. Cox,” and that the complainants are entitled to three-fourths of said negroes. The complainants then pray the court to pass a decree directing the defendants to pay over to the complainants three-fourths in value of negroes Kitty, John, Catharine, Sarah and Charles.

The defendants filed their answer, and admit the renunciation of the executorship as stated in the bill, their appointment as administrators with the will annexed, and their administration of the personal estate. They allege in the concluding part of their answer, that they believe and arc advised, that under a fair construction of the said will, the said negroes Kitty, John, Catharine, Sarah and Charles, are entitled to their freedom, and submit to the court the construction of said last will and testament, and what interest the complainants have in said negroes under said will. The cause was set down for hearing, by consent, upon bill, answer and agreement of counsel, heretofore mentioned. The court below, on the 24th day of May 1859, passed a decree in conformity with the prayer of the complainants, directing the defendants to account with the complainants for three-fourths of negroes John, Catharine, Sarah and Charles, mentioned in the proceedings, or three-fourths of the value of said negroes, and referred the case to the auditor, to ascertain the value of said negroes or three-fourths of them, and directed the auditor to take proof as to the value of the same.

From this decree the defendants appealed to this court. The counsel for the appellants insists, that the decree of the court below should be reversed, because the negroes mentioned in the 2nd clause of the will, take their freedom ³⁰ by implication, and that the condition thereto annexed is void: that this court could not deprive them of their right to freedom in a proceeding to -which they were no parties; that if