Leary v. . Nash

56 N.C. 356

• Court: Supreme Court of North Carolina
• Decided: December 5, 1857
• Status: Published

Opinion

Pearson, J.

1. The defendant Jobn, who was born after the making of the will, and before the death of the testator, is entitled to a filial portion, according to the provisions of the statute.-

2. The slave Venice has her election either to leave the State and be thereby emancipated, or to remain here as a slave. As to this there will be an enquiry.

3. The two children of Venice born after the making of the will, and before the death of the testator, are slaves. There is no ground upon which they are entitled to their freedom. Before the death of the testator the will did not take effect; it was revocable and had no operation until that event. In Caffee v. Davis, 1 Jones’ Eq. Rep. 1, commented on in Cromartie v. Robinson, 2 Jones’ Eq. Rep. 218, the child was born after the death of the testator. In Wooten v. Deaton, 8 Ire. Eq. Rep. 66, the child born after the making of the will, and before the death of the testator, was held to be entitled to his freedom by force of the words “together with all future issue and increase,” which had the effect of taking that case out of the well-settled general.rule. Here, there are no such words.

Pee CueiaM, Decree accordingly.