Where one put a female slave in the possession of another, and by his will, subsequently made, bequeathed that slave to the same person for life, and proceeded, "after her death I give the same slave and her increase to," etc.: Held, that issue of the slave born between the date of the will and the death of the testator did not pass to the legatee for life.
Dempsey Powell, in 1818, put into the possession of Amelia Cook, the wife of the defendant, a negro girl named Ferebe, who continued in the possession of the plaintiff during the life of Powell, the defendants using her and her issue, as their own. Dempsey Powell by his will bequeathed as follows: "I lend unto Amelia Cook (half sister of my wife), during her life time, one negro girl named Ferebe, now in her possession, and after her death, I give the said negro girl, and her increase to Polly Merrit," and thereof he appointed the plaintiffs executors. After the making of the will, and before the death of the testator, Ferebe had issue the slave Willis, claimed in the writ. Amelia Cook was still alive, and if the issue of Ferebe did not pass to her for life, then judgment was to enter for the plaintiffs — otherwise for the defendant.
His Honor being of opinion for the defendant, judgment was entered accordingly, and the plaintiffs appealed.
DANIEL, J.
As the will did not begin to operate until the death of the testator, no right to the slave Ferebe was vested in Amelia Cook, until that time. The slave Ferebe only, and not her children born between the date of the will and the death of the testator, passed to Amelia Cook for her life. Jones v. Jones, 1 N.C. 482. The subsequent words made use of by the testator in the same clause of the will which gives the slave Ferebe to Amelia Cook for life, which words are as follows: "And after her (Amelia Cook's) death, I give (500) the said negro girl Ferebe, and her increase to Polly Merrit, etc." — do not, by necesary [necessary] implication or intendment, carry the increase of Ferebe as well as herself to Amelia Cook for life. To say they did, would, in our opinion, be adding words to the will, rather than construing it, which we have no power to do.
We think that the judgment of the Superior Court must be reversed, and that judgment must be rendered for the plaintiffs.
PER CURIAM. Judgment reversed.
Cited: Covington v. McEntire, 37 N.C. 319.