Bondurant v. Jeffries

48 Ky. 381, 9 B. Mon. 381, 1849 Ky. LEXIS 69

• Court: Court of Appeals of Kentucky
• Decided: June 8, 1849
• Status: Published

Opinion

Judge Geaiiam

delivered the opinion of the Court.

So much of the will of Sarah Goodwin, as is necessary to be adverted to, reads as follows: “After my slaves, each of them, arrive at the age of thirty years, I wish them, should they so elect, to be free.” The plaintiffs who state that they are Justices of the Peace in and for Montgomery county, exhibited this bill in chancery, in which they charge that at' the death of Mrs. Goodwin, two of her slaves, Bristoe and his wife Jo.ice, were old, and that they are now very infirm; that the executor has distributed the estate; that the devisees are about to remove from this Commonwealth, and take their property with them.

They charge that Bristoe and wife seem to be unable to labor, and they verily believe and charge, will in a short time become chargeable to the county, and are at this time, not supported by the executor or devisees. They ask that some money due to some of the devisees, be enjoined and- a suitable provision made, by requiring the defendants to execute bond with security, to maintain said negroes, and such of the other slaves as may hereafter become chargeable to the county.

Individuals sueing as Justices of the county court should show themselves to be such. Can Justices of the county court proceed by bill in chancery to compel surety to tie given that negroes emancipated by will shall not become chargeable to the county. Is not a proceeding by summons and attachment from the county court more appropriate? Peters for plaintiffs; Appevson for defendants.

The defendants do not admit that the old negroes are now paupers, or that they are now or will ever become a charge on the county ; and suggests a doubt whether they are, in fact, free under the will, inasmuch as at the date of the will, each of said slaves were largely more than thirty years of age. They do not admit that all the complainants are Justices of the Peace, and controvert the right of any or all to maintain the bill. They deny any intention to remove from this Commonwealth.

The Court below dismissed the bill, and we think, rightly done so. The complainants have not, in any way, shown that they are members of the County Court, and that fact having been controverted, and having, as private citizens, no authority to institute the suit, they were bound to establish, by proof, their right to sue. It is very questionable whether old Bristoe and wife are free. They were fifty years of age when the will was made, and had, therefore, long before the death of their mistress, arrived at the age of thirty years. Be that as it may, the proof does not sustain the allegation that the defendants were or are about to leave the Commonwealth. The existence of such intention was necessary to authorize the restraining order or injunction granted in the cause. The old negroes have not yet become a charge on the county, and it is to be hoped, that the humanity of those for whose benefit they have toiled in their days of vigor and strength, will not cast them, in decripitude and old age, a useless burthen on the community.

We are also of opinion, that the complainants have mistaken their remedy, even if there were now any necessity for their acting in the matter, and suggest that some proceeding at law, by process from the County Court, say that of summons and attachment, might be more appropriate.

The decree of the Circuit Court is affirmed.