the issue

5. Scott v. Dobson, October T. 1749. 1 Har. & M.Henry,

160.; SOMMERVILLE V. JOHNSON, 1 Har. & M'Henry,

348. ; HAMILTON v. CRAIG, 6 Har. & Johns. Rep. 18. Replevin for Lewis and Sampson, two negro boys, and Kate A legatee and Phæbe. The jury found, that Benjamin Parrot, by his late for life of

is will and testament, devised as follo.vs : “ I leave unto my wife entitled to four negroes during her natural life; that is to say, Kate, Alice, born duMorcah, and Rose, and after her death to be divided between my life estate.

ring the seven children, Benjamin, Mary, Hannah, Eliza, Jane, Rebecca and William Parrot." The defendant, Hannah, is one of the children mentioned in the will, and took and detained the negroes after the death of the testator's wife, and the plaintiff intermarried with the widow; that the negroes mentioned in the declaration were born after the death of the testator, of the bodies of the slaves mentioned in the will, and while they were in the possession of the widow of the testator and her husband. The provincial court gave judgment for the defendant, and the plaintiff appealed to this court where the judgment was reversed. And, see Sommerville v. Johnson, Feb. T. 1770, 1 Har. & M'Henry, 348., and Mr. Dulany's opinion appended to the case. In speaking of the above case, Mr. Dulany says, that the bar of Maryland have considered the case as settling the law, that purchases have been made, and much property is held under the decision. And that the two principal reasons which governed the court were, 1st. That the issue ought to go to the person to whom the use was limited; otherwise, having no interest worth regarding, he might not take care of the issue, and that it would only be a reasonable satisfaction for the expenses of maintenance. 2d. That when the use is given, a bounty at all events is intended ; but instead of a benefit, if th issue should go over, there might be a loss.* And in Bohen v. Headly, 7 Har. & Johns. Rep. 257., Archor, J., held, that the issue of slaves born during the existence of a tenancy for life belong to the tenant.

* And see Mr. Dulany's opinion, 1 Har. & M Henry, 557., where he held, that where A. was possessed of a negro woman slave, who in the life time of A. had issue, which issue also had issue after the death of A., can the representatives of A. claim a share in the issue of the children born aster the death of A.? I think the representatives of A. might claim the issue.




to one for

has issue

HAMILTON v. CRAGG. June T. 1823. 6 Har. & Johns. Rep. 16;

S. P. Scott v. Dobson, 1 Har. & M'Hen. 160. ; SOMMER-
VILLE V. JOHNSON, ibid. p. 352.; STANDIFORD V. Amos,

1 Har. & Johns. Rep. 526. Where

The court, Buchanan, J., held, that were a negro woman was negro wo- devised to one during the life of the devisee, and then to be free, queathed the children born during the life of the devisee would be slaves. the life of They follow the condition of the mother at the time of the birth, the legatee, who, though to become free herself, on the death of the legatee, during his was, during her life time, not in the capacity of a servant, but in life, af

the state and condition of a slave ;* she had no civil rights, and

could have pursued no legal remedy against her mistress on any such issue account; she could have made no will, and was incapable of taklong to the ing by descent or by purchase, the product of her labor belonged the ground to her mistress; she could neither plead or be impleaded, and was that the is subject to all the disabilities and incapacities incident to a state of considered slavery. She was a mere chattel, the property of her mistress, accessary,

who could have sold or transferred her at pleasure. In this state britehas part of slavery the petitioner was born, and though on the death of the and to go legatee, the mother became free, yet she may be said then first to per

have been “ born into civil life,” and her new-born capacities, inwhom the use is lim. cident to her new state of being, could not have a retrospect to ited.

the time of the birth of her children, to the effect of giving them civil rights.

ter the death of the testator

not as an

to the son to

7. CONKLIN V. HAVENS, August T. 1815. 12 Johns. Rep. 314. The same

Trespass and false imprisonment. One Conklin was owner principle has been a- of a negro slave, named Maria, and her daughter Cloe, and by his New-york will bequeathed as follows: "Item, I give my negro wench, Maria,

her time; and I give to Maria her daughter Cloe, during her natural life.” The plaintiff was a child of Cloe, and the question was, whether she was a slave.

Per Cur. Yates, J. Our opinion is, that by the words of the will the testator gave Cloe to her mother during the life of the

* In the circuit court of the United States, Judge Cranch held, in the cases of Negroes Peter and Lewis v. D. T. Cureton and Preness, November T. 1824, that the chil. dren of a female slave sold for a term of years, born during the servitude, are the slaves of the person entitled to the service of the mother at the time of the birth. And the same principle was decided in the case of Negro Sarah v. Elijah Taylor, November T. 1818, and Negro Fanny v. Isaac Kell, May T. 1824.

mother. According to the principles of law, a person hiring an animal is entitled to the increase, because, for hiring for a time he becomes temporary proprietor for the time of the animal. And the doctrine becomes stronger where the hiring is for life.

The children of Cloe were born during the life time of Maria, and while she was entitled to her services. They, therefore, belonged to her; and in case of her decease, to her legal representatives; and if there be no such representatives, which is probably the case in this instance, the children being the issue of her own daughter, they, of course, have become free. The plaintiff being one of those children, if not entitled to his freedom altogether, at all events, cannot be claimed by the defendant in this


in a




1. Puller's Exr's v. Puller. December T. 1824. 3 Rand. Rep. 83.

This was a bill by Mrs. Puller against the executors of her husband, enjoining them not to sell two slaves, Garret and Icy, The word which they had advertised.


will The testator, Puller, on the 4th of March, 1818, made bis will, should ge

nerally be and devised as follows : “ I give to my beloved wife, Ann Puller, restricted 500 acres of land, including my present dwelling, and a negro ture incrase

to the fuwoman named Jenny, and her increase,” &c. Jenny had two

ofthe slave, but it

may children, Garret and Icy; the youngest of whom was 14 years of include age at the date of the will. Jenny was near 40 years of age at the born bedate of the will, and had borne no children for the last 14 years, which was known to the testator. And the question was, whether these children passed under the will to Mrs. Puller; or, in other words, whether the term increase in a will conveyed the past as well as the future children. The Chancellor decreed in favor of Mrs. Puller, and the defendant appealed.

The court (Coalter, Cabell, and the President, delivering opinions) held, that the word increase ought to be construed to apply to the future offspring, if the expression be not enlarged by the context of the will, or other admissible evidence. See Reno v. Davis, 4 Hen. & Munf. 283.

Per Cabell, J., after observing the decree must be affirmed, said, there is not only no case fixing the import of the term increase, but it is most certain that when taken abstractedly, it is variously understood even among judges. Chancellor Wythe and Judge Fleming gave it an enlarged, and Judge Tucker and the Judge

slave may

one of his

and the fu



who preceded me, gave it a restricted interpretation. I am also inclined to believe, that it is generally used in the restricted sense, so as to embrace future increase only; and although it is quite common to and expressly the term future, yet that is done out of abundant caution to remove all doubt upon the subject.

2. BANKS' ADM'k v. MARKSBURY. Spring T. 1823. 3 Little's

Rep. 275. The owner

The administrator of Rachel Banks sued Marksbury in detenue, of a female

to recover sundry slaves. give her to

The plaintiff claimed title under a deed of gist of Samuel children, Marksbury, which was in these words: “For and in consideration ture in of love and good will I bear to my children, I give and grant to my another.

Samuel Marksbury, my negro wench Pen; and her increase from this time I do give to my daughter Rachel Marksbury.” Rachel intermarried with William Banks, and the wench had several children, now held by the defendant. The court instructed the jury, that the plaintiff had no right to recover.

Per Cur. It is contended, that no interest in the slave in question passed by the deed, being her future increase which was given, and the donor had nothing in him to give at the time ; and that a man cannot make a good grant, or gilt, unless the thing be in him at the time of the grant, according to the maxim nemo dat quod non habet. Without controverting the correctness of this maxim, or of the principle on which it is founded, we have no hesitation in saying, that it is inapplicable to the present case. He who is the absolute owner of a thing, owns all its faculties for profits or increase ; and he may, no doubt, grant the profits or increase as well as the thing itself. Thus, it is every day's practice to grant the future rents or profits of real estate ; and it is held, that a man may grant the wool of a flock of sheep for years. Noy's Max. 83. The interest which the donor's daughter Rachel took in the increase of Pen must, indeed, from its nature, have been contingent at the time of the gist; but as the children of Pen were thereafter born, they would, by the operation of the deed, vest in the donee.

Reno's Ex'rs v. DAVIS AND WIFE. November T. 1809. 4

Hen. & Munf. 283.; KERNON V. ROBERTS, 1 Wash.
Rep. 107.; Davis v. MILLER, 1 Call, 127.; SHELTON

v. SHELTON. 1 Wash. Rep. 56. The word increase in The case depended upon the construction of Reno's will, which


be ex

was in the following words : “ Item, I give and bequeath unto my a will is

ambigu. daughter, Jane Reno, a negro woman and her increase, named ous, and if

it cannot be Sib, to her and her heirs forever.” Before the date of the will, Sib had two children, and after the death of the testator had ed by all another; and the question was, whether the claimant was entitled will taken

together, it to all the children, or only to the one born after the testator's me

may death.

plained by

parol testiThe court held, that the word increase, (without the word future mony. prefixed,) in the bequest of a female slave, was ambiguous, and must be explained by the whole will taken together; and if the meaning of the testator cannot be discovered, then parol testimony may be admitted. See Couts v. Craig, 2 Hen. & Munf. 622. ; Fleming v. Willes, 2 Call's Rep. 5.

Per Fleming, J. The word increase may well be construed to include the children of Sib, born as well before as after the date of the will, and ought to be construed most favorably to the legatees, and to have the same import as if, instead of the word increase, he had used the word offspring. And I am rather inclined to believe, that all the children of Sib were intended to pass by the bequest, as the word increase precedes the name of the mother; and if the testator had intended that none should pass but those thereafter born, he probably would have bequeathed Sib and her future increase, which would have removed all doubt upon the subject.

4. MARLIN v. Marlin. August T. 1832. 3 Yerger's Tennessee

Rep. 546.



On the 20th May, 1813, W. Lucas, of Orange county, Vir- The words

“ future inginia, made and published his last will and testament. Among crease," in numerous bequests in the will, is the following: “I lend to my the brease daughter, Rachel Marlin, three negroes, now in her possession, slaves, ex

tend only Hannah, Harry, and Major, during her natural life, and after her

to embrace decease, I give unto all the children of Sarah Marlin, deceased, such inthe negroes above named, to be equally divided among them, with are born all their future increase, to them, their heirs, &c. forever.” By bequest the same will he gave to his daughter Rachel Marlin, his negro mande

made, and girl Winney, then in her possession, with all her future increase. construc

tion, be exIn eight or nine bequests of specified slaves in this will, is the same tended conclusion to each, “ with their future increase.”

prior born Per Cur. Peck, J. The question raised by the pleadings and increase. proof is, whether the offspring of the slaves named, born before

after the

to embrace

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