McKee v. Administrators of McKee

LeGrand, C. J., delivered the opinion of this court. We are of opinion that the circuit court properly refused the injunction asked for in this case. And this opinion we rest upon the insufficiency of the averments in the bill. Inasmuch as the papers will be returned to the court below, for its further action in the premises, if such should be desired by the complainants, we give a brief statement of the principles which should govern the decision of the case.

The decision depends, principally, on the 4th section of the Act of 1842, chapter, 293, which provides that “in case of the death of the wife her slaves. shall descend and go to ³⁵⁸ her children and their descendants, subject to the use of the husband during his life, without liability to his creditors.” Heretofore the question has been before this court and fully .considered, and an opinion prepared by one of its members, (Judge Tuck,) in relation thereto. ''This was in the case of Hammett vs. Herbert, heard and decided at June term 1859. As the court was then constituted, the judges were equally divided in opinion in regard to it, and for that reason, in accordance with the practice of the court, no opinion was filed. The judges who sat in this case, concurring with Judge Tuck in his construction of the Act, adopt his opinion in that case as applicable to this one. It is as follows: “It is the settled law of this State, that where, by a will or deed, the use of female negroes is limited to one for life or years, the person having such use is entitled to the increase born during the term, upon the principle that, the issue is to be considered, not as accessory, but as part of the use, to go to the person to whom the use is limited.

Hamilton vs. Cragg, 6 H. & J., 16 . Different expressions have been empjoyed but they have received one interpretation. Thus, in Scott vs. Dobson, 1 H. & McH., 160, the bequest was to the wife for life, and after her death the negroes were to be divided among others; in Somerville vs. Johnson, 1 H. & McH., 352, the bequest was of “the use” of negroes during the life of the legatee; in Standiford vs. Amoss, 1 H. & J., 526 , the words were similar to those in Scott vs. Dobson; in Hamilton vs. Cragg, 6 H. & J., 16 , the female negro was bequeathed to S. T., “to possess and enjoy during her natural life;” in Chew vs. Gary, 6 H. & J., 526 , the testator left all his negroes free at his death, except a woman who was “to serve” his mother during her life, and then to be free;” in Sutton vs. Crain, 10 G. & J., 458 , the testator directed that Mrs. Watts should have the exclusive use of a woman, until the arrival at age of the youngest of her children. In these instances the same effect was ascribed to the words cited.

It may be safely assumed that if the language of this Act were part of a will, the husband would be entitled to the increase, born after the coverture; and the sole question is, ³⁵⁹ whether the rights devolved upon him by the law are more limited than if he claimed in any other manner? “Where words used in an Act of Assembly have received a judicial construction, it is presumed that the Legislature employed them in that sense, unless a contrary intent can be gathered from the whole Act. The first three sections secure to the wife her own negroes as well as their increase, but by the 4th the husband is to have the control and management of all — the corpus as well the issue — and at her death “such slaves,” by which is meant the corpus and the increase, during the coverture, are to descend and go to her children, “subject to the use of the husband during life, without liability to his creditors;” and this use embraces all the negroes of the wife at the time of her death. The first part of the fourth section does not give to the husband any property in the issue born during the marriage — but it is in terms secured to the wife; nor would the language employed in that part of