{ "id": 8681531, "name": "EDWARD DAVIE and Wife and others vs. WILLIAM KING and others", "name_abbreviation": "Davie v. King", "decision_date": "1842-06", "docket_number": "", "first_page": "203", "last_page": "205", "citations": [ { "type": "nominative", "cite": "2 Ired. Eq. 203" }, { "type": "official", "cite": "37 N.C. 203" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "1 Dev. & Bat. Eq. 601", "category": "reporters:state", "reporter": "Dev. & Bat. Eq.", "case_ids": [ 11276064 ], "opinion_index": -1, "case_paths": [ "/nc/21/0601-01" ] }, { "cite": "1 Dev. & Bat. Eq. 113", "category": "reporters:state", "reporter": "Dev. & Bat. Eq.", "case_ids": [ 11274482 ], "opinion_index": -1, "case_paths": [ "/nc/21/0113-01" ] }, { "cite": "1 Ired. 174", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 2104352 ], "opinion_index": 0, "case_paths": [ "/nc/23/0174-01" ] }, { "cite": "1 Dev. Eq. 298", "category": "reporters:state", "reporter": "Dev. Eq.", "case_ids": [ 11274975 ], "opinion_index": 0, "case_paths": [ "/nc/16/0298-01" ] }, { "cite": "1 Dev. & Bat. Eq. 601", "category": "reporters:state", "reporter": "Dev. & Bat. Eq.", "case_ids": [ 11276064 ], "opinion_index": 0, "case_paths": [ "/nc/21/0601-01" ] } ], "analysis": { "cardinality": 325, "char_count": 5465, "ocr_confidence": 0.499, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20789571129436504 }, "sha256": "3e8e6a5def96097f6199af8ef1827dc6fdeb239330bfb362885f1f3a389202a1", "simhash": "1:b7c6eba79c4fedcf", "word_count": 978 }, "last_updated": "2023-07-14T15:50:27.933727+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EDWARD DAVIE and Wife and others vs. WILLIAM KING and others." ], "opinions": [ { "text": "Ruffikt, C. J.\nIn 1834, John Holloway made his will and testament, and therein, after many devises and particular legacies of slaves and other things, he bequeathed as follows: \u201c The residue of my estate, if any, to be equally divided among all my children:\u201d and he appointed the defendant King, and three others, his executors. The testator died in 1840, and the will was proved by King and others, the executors, who properly administered the estate, as is admitted in the bill, except as to a certain slave, called Grace. The bill is filed by some of the testators children, against the other children and the executors; and states, as to the said slave, that she belonged to the testator at his death, and was not specifically given away in the will, but formed a part of the residue of the estate, and ought to be divided among all the children equally; but that the defendant King had her in his possession, and, claiming her as his own property refused to account for her as n part of his testator\u2019s estate. The prayer is, that she may be declared to be a part 0f ifje residue, and distributed accordingly.\nIt is not material to mention the answers of any of the defendants, except that of King, upon which the only question in the cause arises. He states that he married a daughter of the testator\u2019s by his second wife, who was a daughter of one Halliburton; and that, after the testator had made his will; Halliburton gave to his son-in-law, Holloway, the slave in question: and that the latter never took her into his actual possession, but caused her to be sent directly from Halliburton\u2019s to the. defendant King, as a gift and advancement from Holloway to his daughter, Mrs. King, and her husband; and. that, as such, he, King, received her, and had her in possession for more than three years before and up to the time of Holloway\u2019s death, claiming her as his own; and that the testator, frequently, during that period, declared that he had given the slave to the defendant, King. Upon those facts, the answer insists, that the testator did not consider Gracs as a part of his estate, and that, by a proper construction of the residuary clause, she does not pass under it; but that the testator died intestate as to her, and that thereby the pa-rol gift to King became a perfect title upon the death of Holloway.\nThe court is relieved from the duty of considering the latter point made in the answer, upon the effect under the act of 1806, of intestacy as to a particular slave before put into possession of a child by the parent; upon which doubts may yet be entertained: Stallings v Stallings, 1 Dev. Eq. 298. Hurdle v Elliott, 1 Ired. 174. We are thus relieved, since there cannot be a doubt that the testator did not die intestate as to this slave. The answer notices the fact, that Holloway acquired the negro after he made his will, and upon that .coupled with the parol gift to King and wife, the argument is founded, that the testator did'not intend to include this slave under the residuary clause. But it is clear law, that a general residuary clause passes a personalty, not otherwise effectually disposed of; although acquired subsequently to the execution of the will. In this respect wills and testaments differ; a devise passing only such land as the party had at the time of making the will, while a disposition of personalty takes all the testator should have at his death. Which last is not, upon any intention to pass a particular chattel, not owned by the testator when he made his will; but it goes upon the general intention declared by him, in the residuary clause, not to die intestate as to any thing. Sorrey v Bright, I Dev. & Bat. Eq. 113. This instrument, therefore, passes all that it would have done had it been executed immediately before the testator\u2019s death; and, as the words \u201cthe residue of my estate\u201d are broad enough to take in this negro, if she belonged to the testator, the only question is, did she belong to him? Upon that there is no doubt. Both parties claim under him, and the defendant, by parol gift, amounting only to a bailment, to hold at the testator\u2019s pleasure, capable of becoming a valid gift ah initio upon a condition, which has not happened \u2014 that the testator should die intestate. In a case not so strong as this, McConnell v Peebles, 1 Dev. & Bat. Eq. 601, we held that under a gift of \u201c all my negro slaves\u201d not only those in the- testators possession, but those previously given by parol to his children, passed. This slave must, therefore, be declared a part of the residue of the testator\u2019s estate, and the usual accounts and directions for a division among the children be ordered.\nPer Cubiam, Decreed accordingly", "type": "majority", "author": "Ruffikt, C. J." } ], "attorneys": [ "P. H. Mangum for the plaintiffs.", "W. A. Graham and Norwood for the deiendants." ], "corrections": "", "head_matter": "EDWARD DAVIE and Wife and others vs. WILLIAM KING and others.\nA slave, acquired by a testator after the execution of his will, and given by him to one of his children, by parol, passes under a general residuary clause.\nThe parol gift was void, and a bequest of \u201c the residue\u201d passes all the personal estate of the testator at the time of his death, not otherwise specifically disposed of by the will.\nThe cases of Sorrey v Bright, 1 Dev. & Bat. Eq. 113, and McConnell V Peebles, 1 Dev. & Bat. Eq. 601, cited and approved.\nThis cause was transmitted by consent of parties to the Supreme Court, at Spring Term, 1842, of Person Court of Equity. The facts are set forth in the opinion of the court.\nP. H. Mangum for the plaintiffs.\nW. A. Graham and Norwood for the deiendants." }, "file_name": "0203-01", "first_page_order": 203, "last_page_order": 205 }