Hardy v. Toney

Supreme Court of Alabama

Hardy v. Toney

20 Ala. 237

DecidedJanuary 15, 1852

StatusPublished

This text of 20 Ala. 237 (Hardy v. Toney) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hardy v. Toney, 20 Ala. 237 (Ala. 1852).

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Opinion

CHILTON, J.

The only question in this case is, whether a child, born of a slave bequeathed between the time of making the will and the testator’s death, goes with the mother to the legatee, or passes to the executor as property not bequeathed.

The general rule most unquestionably is, that the will takes effect from the death of the testator, and in the absence of words showing a contrary intention, must be construed as if made at that time. Lomax on Exrs. vol. 2,152-3, and cases cited on the brief. A construction, therefore, which would make it relate back to a period anterior to the time when it takes effect, so as to pass property not named in it, cannot be indulged in this case, there being no expression of the testator which authorizes it. The Circuit Court very properly held that the child did not pass to the legatee.

Let the judgment be affirmed.

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CHILTON, J.

The only question in this case is, whether a child, born of a slave bequeathed between the time of making the will and the testator’s death, goes with the mother to the legatee, or passes to the executor as property not bequeathed.

The general rule most unquestionably is, that the will takes effect from the death of the testator, and in the absence of words showing a contrary intention, must be construed as if made at that time. Lomax on Exrs. vol. 2,152-3, and cases cited on the brief. A construction, therefore, which would make it relate back to a period anterior to the time when it takes effect, so as to pass property not named in it, cannot be indulged in this case, there being no expression of the testator which authorizes it. The Circuit Court very properly held that the child did not pass to the legatee.

Let the judgment be affirmed.

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Bluebook (online)

20 Ala. 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardy-v-toney-ala-1852.