Sutton v. Crain

delivered the opinion of this court.

The question which we presume was intended to be raised by the prayer in this case, which was refused by the court, was, whether the bequest in the will of Henry Watts, of the exclusive use of negro Sarah to Ann Watts until the youngest of his grand-children named in the will arrived at age, gave the right to Mrs. Watts of the issue of Sarah, born during the existence of her usufructuary interest, and before the youngest of his grand-children arrived at age. If this had been the bequest of the use during the life of the legatee Mrs. Watts, it would not admit of discussion. Various decisions of the courts of this State have settled the question that, the bequest for life of the use of a female slave, vests in such legatee a property in the issue born during the existence of the life estate, upon the principle that, the issue is to be considered not as an *478accessary, but as a part of the use, to go to the person to •whom the use is limited., 6 Harr. & John. 18.

In the first decision which was made upon this subject in our courts,-the right to the issue was placed upon the ground that the legatee, who was entitled to the profits from the use, vras subjected to loss, by the pregnancy of the subject of the bequest, and from the maintenance and support of the issue, which he was bound to take care of, and that when the use is given, a bounty at all events is intended; but instead of a benefit, if the issue should go over, there might be a loss.

It has been conceded, indeed it could not be disputed, that in the case of a bequest of a female slave for a term of years, the same principle would give the property of the issue born during the term to the legatee, but it is supposed that the rule, when established by our courts, was a departure from the law, and that it should he treated as an exception, and that as subsequent cases occur, they should be decided by what is supposed to be the law infringed by the exception, and not by the exception, unless clearly within it. The error of this argument, we suppose, is to be found in the assertion, that this constitutes an exception. On the contrary, we suppose it to be the establishment of a principle, which is to govern like cases when they are presented.

The evils anticipated to flow from this doctrine, if realized, it must be admitted, would be attended wdth mischief and inconvenience. It is supposed that it would follow as a consequence, that he who hired a female slave for a year, a month, or a day, would be entitled to the issue born during the period of service; nay, that the hirer of a free woman, or the master of a female apprentice, would be entitled to the issue born during the service. But these consequences we think could not flow from the decision; for the instances put must be governed by the universal usage and understanding of the country, which forbid the idea, that any property in the issue could be acquired under such circumstances; besides, the contract of hiring, carries but the labor and service, and passes no property in the slave hired.

*479There is nothing we think in the will of Henry Watts which militates against the right of Mrs. Watts to the issue bom during the existence of her estate. As applicable to the disposition of personal property in this will, the word “use” occurs three times, and it is true that, in the two first instances in which it is used, it carries but the right to the service and labor of the slaves. But where it first occurs, it is to be remarked, that the testator seems to have been aware that, by the use of the term, the right to the issue would be carried to the legatee for life; and, therefore, he bequeaths over the increase. And wdiere it in the second place occurs, it is connected with the word hire- — “hire or use;” — the term use being there qualified by its connexion with the word “hire;” as if the testator had been apprised, that without the word “hire,” and by the word “use,” standing alone, the issue of the slaves bequeathed to the grand-children might have been sold as profits, from the use, for the maintenance and education of his grand-children, which clearly was not his design; the hire or use being only appropriated to these objects. But when the testator uses the word “use” in the third instance, which is in the bequest now under consideration, the word “hire” is not connected with “use” as immediately preceding in the same clause, nor is the increase given over, as in the first instance; but this strong language is used.' — “It is however my desire that their mother, Jinn Watts, shall have the exclusive use of negro Sarah until the youngest of my said grand-children shall arrive at age.” The will, therefore, instead of indicating an intention against the pretensions of M'rs. Watts, is strongly in favor of them.

The prayer of the defendant was, that the plaintiff, if the jury believed the facts, was not entitled to recover, because negro Mary, the property in dispute, was the property of the defendant. This direction the court refused to give. Could the court have rightfully granted this prayer, if they had believed with the defendant, that negro Mary passed under the will to Mrs. Watts ? We think they could not. They would, by so doing, have taken from the jury the consideration of the ques*480tion, whether the legacy to Mrs. Watts had ever been assented to by the representative of H. Watts. — A fact indispensably necessary to have perfected the defendant’s title. This is conceded so far as the mother of the child in controversy is concerned, and must be equally true as to the issue; for, as property could not be acquired in the female slave, it would seem to follow of consequence that she could be entitled to none of the fruits of that property wdthout such assent. But it is supposed, that the presumption from the facts and circumstances was so strong, that they ought to be considered as conclusive. But this would convert what would appear from the evidence to be a presumption of fact, into a legal presumption, which we think we should not be at liberty to do. The jury might find, as an inference from the facts, that the assent was given, but they were not bound to do so. We therefore think that the court committed no error in refusing the prayer offered by the defendant, and affirm their judgment.

JUDGMENT AFFIRMED.