Pierce v. John

Eccleston, J., delivered the opinion of this court. The first prayer granted by the court at the instance of the appellee is, that “if the jury believe from the evidence, that Rowles and wife received the said negro John from the executor of Richard Pierce, as a part of her residuary legacy under ³⁴ the will of Richard Pierce, and also received her distributive share of the whole of the said estate- of said testator, then it is not competent for said defendants to set up any title to the' said negro John, inconsistent with the title asserted by the testator in his last will and testament.” The court were wrong in giving this instruction, if for no other reason, because there is no evidence to-show that Rowles and his-wife received her distributive share of the whole of the estate of the testator. The administration- account, given in evidence by the appellee-, states the payment of the- legacy of $100, bequeathed to Mrs. Rowles; but the same account shows, that after deducting all the credits claimed, there stilt remained a balance due the estate, of $237.85. There is no evidence whatever; that Rowles and wife or either of them* ever received any part of this balance, or that it was necessary to' apply the same to any other legitimate purposes Their receipt, offered in evidence, refers to the negroes alone,, and the account shows this balance is exclusive of them.

The appellee’s second prayer is, “If the jury believe from' the evidence, that Rowles and wife have received the negro man John, under the will of Richard Pierce, from his executor, that they may infer that the title derived under the bill of sale had been relinquished by them.” This instruction the court gave, and in doing so we think they committed an error, for the reason that there is no evidence that Rowles and wife received the negro under the will. The receipt does not state the negroes were so received. And the will cannot justify any such inference, but on the contrary its provisions negative any claim in these parties to the negroes. They are all manumitted to be free at the testator’s decease.

The will then gives Mrs. Rowles $100. It directs the residue of the personal estate to be sold ; that the proceeds after paying the $100, shall be equally divided between the testator’s son and daughter, Joseph Pierce and Mary Rowles. All, therefore, which Rowles and wife could claim or receive under the will, could be nothing more than the $100, and a moiety of the residue of the personalty, exclusive of the manumitted negroes. ³⁵ They surely constituted no part of the residue, directed to be sold and divided, because they were to be free at the decease of the testator. The administration account, which is part of the petitioner’s proof, also seems to contradict the idea that the negroes were received under the will.

The first item of disbursements speaks of the $ 100, as a “legacy left by deceased to Mary Rowles;” but when a credit is claimed in regard to the negroes, the language used is, “of current money, appraised value of six negroes, divided between representatives, as per receipt filed and recorded.” The parties supposed to be entitled are spoken of as representatives, and not as legatees; nor is the property called a legacy, or residuary bequest, or gift. Looking to some of the authorities referred to by both parties, and considering the principle involved in the first prayer, granted at the instance of the appellee, we suppose the court refused the first and second prayers of the appellants, under the impression, that notwithstanding the title of Rowles and wife, under the bill of sale, yet as they had received a legacy under the will, the petitioner might be entitled to freedom according to the doctrine of election. But the principles