Opinion
December Term, 1841.
1. Parol evidence cannot be admitted to add to, subtract from, or modify a testamentary disposition, but it is properly admissible to identify the things therein described.
2. A. by will devised as follows: "I hereunto confirm the property I have heretofore given to my daughter Susan, and $1 to her, her heirs and assigns forever." Under this devise a negro girl named Fan was claimed. It was proved that Fan's mother had been called in the family Susan's negro; that when Susan intermarried this mother had been sent home with her and remained with her some time, and was afterwards taken back by the testator and continued with him till his death, claimed by him as his own; that the testator had quarreled with Susan's husband, and, besides the mother of Fan, some articles of household furniture had been sent home with Susan, which had never been reclaimed. It also appeared that in similar devises to his other children (four in number) he not only gave them in general terms the property he had before given them, but added, "including the negroes," naming them: Held, that the testator did not intend by this devise to convey any negro to Susan.
APPEAL from Settle, J., at Fall Term, 1841, of JONES.
(193) J. W. Bryan for plaintiffs.
J. H. Bryan for defendant.
The petition was brought against the defendant as executor of William Rhem, deceased, for the recovery of a negro girl named Fan, and also for $1 alleged to have been devised to the petitioner Susan by the will of the said William. Much proof was taken in the case, and upon the final hearing the presiding judge decreed the petition to be dismissed at the costs of the petitioners. The pleadings and the facts established by the proofs are fully set forth in the opinion delivered in this Court.
On 1 May, 1830, William Rhem, late of the county of Jones, duly executed his last will and testament, and therein, amongst other things, bequeathed as follows: "I hereunto confirm the property I have heretofore given to my daughter Susan Kinsey, and $1 to her, her heirs and assigns forever." The testator, after other specific bequests, gave all his negroes and all the residue of his property to his sons, Melchor Rhem and William B. Rhem, to be equally divided between them, their heirs and assigns, forever; and constituted the latter and Hardy Perry his executors. After the testator's death, at December Term, 1833, of Jones County Court, William B. Rhem, the defendant, alone proved the will, and took upon himself the office of executor. At (194) September Term, 1838, of Jones Superior Court, Joseph Kinsey and Susan, his wife, filed their petition against the said defendant, in which they set forth that long previous to the intermarriage of the plaintiffs the deceased, William Rhem, gave unto the petitioner, Susan, his daughter, a negro child named Alice, and upon their marriage repeated the said gift, and sent the said Alice with her to her husband's house, where she afterwards remained until her death, being constantly recognized as the property of the petitioners. The petitioners further stated that while Alice was thus in their possession she gave birth to a child named Fan, and shortly afterwards died; that a short time before the death of the said William the said negro girl, Fan, was permitted by the petitioners to go to the house of said William for a temporary purpose, and was there at his death, but was recognized by him as the property of the petitioners; that the said William never did give unto the petitioner Susan any other property than the negro Alice; that he made no deed of conveyance, but that he made similar parol gifts to his other children, and by his will confirmed this gift to the petitioner Susan, and the other parol gifts to his other children. The petitioners further charged that the defendant had taken possession of the said Fan, as the executor of the said William, and, though often requested by them, refused to deliver her or to pay over the legacy of $1 bequeathed by the will. The defendant answered the petition, and in his answer set forth that the petitioners intermarried in 1823; that previously to the marriage the petitioner Susan, who lived with her father, called Alice her negro, and upon the marriage Alice was sent home with her, and he has no doubt it was then the intention of his father to permit the petitioners to have the use of Alice's labor, and at a suitable time thereafter to make a title for her; that Alice stayed two years with the petitioner Joseph, and, he being about to sell her, the deceased asserted his title to her and took her home, and that she died in his possession. The defendant further stated that at the time of the intermarriage of the petitioners Fan, the child of Alice, was about 4 years old; that she was not sent with (195) her mother, Alice, nor was she ever out of the possession of his testator until the day of his death; that it never was the purpose of the testator to give the said Fan to the petitioner Susan. The defendant further stated that when Alice was taken back, a quarrel took place between the petitioner Joseph and his father-in-law, and that an alienation between them was the consequence; that they never had any intercourse thereafter; that the testator, in consequence, declared his determination not to give Alice or any other property to the petitioners, except the articles of furniture which he alleged were sent home with her when she married, and the gift of which and of which only was confirmed by his will. The defendant admitted that the testator had made parol or imperfect gifts of negroes to his other children, when they married, and confirmed these by his will, but insisted that in every such instance he distinctly named in the will the negroes so advanced. The defendant further stated that, after the death of his father, he and his brother Melchor Rhem, as residuary legatees, divided between them the negroes bequeathed to them, and that he had sold the said Fan, who had been included in his share of that partition. The defendant denied that previously to the filing of this petition any demand had ever been made upon him by the petitioners either for the negro girl, Fan, or for the $1; and that as to the said $1, the defendant would at any time have paid the same to the petitioners had he supposed the petitioners would have received it; that the petitioner Joseph was a wealthy man, and considering the circumstances of the quarrel between him and the testator, which continued to the testator's death, and which probably influenced the testator in making so slight a provision for the petitioner's wife, the defendant verily believed that an offer to pay it would have been regarded as an insult. The defendant, however, prayed leave to be permitted to pay the same into court, with interest thereon from the death of the testator. A replication was entered to the answer, (196) and, proofs being taken on both sides, the cause was heard at the last term of Jones Superior Court, when the petition was ordered to be dismissed at the costs of the petitioners. From this decree they appealed to this Court.
The only inquiry in this case is one of fact, whether the negro Fan be, within the words and meaning of the testator, a part of the property he had theretofore given to his daughter Susan. In the legal sense of the term it was not a part, because since our act of 1806 (Rev. Stat., ch. 37, sec. 17) a parol gift of a slave is void in law; but in the common acceptation of the term a slave may be given by parol, and a testamentary declaration affirming that gift would clearly be effectual. Parol evidence cannot be admitted to add to or subtract from a testamentary disposition, but it is admissible to identify the things therein mentioned, and for that purpose it was properly received in this case. In prosecuting our inquiry we have rejected the testimony of Melchor Rhem as that of an incompetent witness. Fan having been allotted to the defendant in the division made between him and the witness, the latter has an interest in maintaining the title of the former, as in case of recovery he would be liable to contribution. But, after rejecting the testimony of this witness, we think the preponderance of the evidence is decidedly against the claim of the petitioners.
It is not deemed necessary to recapitulate that evidence minutely. We hold that it clearly shows that it was the custom in the family of the old gentleman for his daughters to claim each a negro as hers; that this custom was well known to the father; that the negroes so severally claimed were called the property of the respective claimants; and that, upon the marriage of any of his daughters, "her negro," as it was called, was sent with her to the house of her husband, together with such articles of household furniture as she was accustomed to use as her own. The negro Alice, before the birth of Fan, was called in the family Susan's, and, after the birth of Fan, she as well as her mother Alice were called Susan's negroes. When the petitioner Susan intermarried with the petitioner Joseph, she carried Alice with her, and also a bed and furniture and some other household articles of little worth. Fan did (197) not go, because Mrs. Rhem wished her to stay, and not because of any opposition on the part of Mr. Rhem. In two or three years after the marriage Alice was taken back by him and remained in his possession until her death. About the same time the quarrel mentioned in the answer took place, and from that time up to his death Alice and Fan, the former as long as she lived and the latter continually, were held and claimed by him as his property. Upon these facts we should feel ourselves constrained to hold that Fan is not identified to be a part of the property described by the testator in 1830 as theretofore given to his daughter Susan.
But there is evidence furnished by the will itself which strongly confirms this conclusion. In every other bequest in the will, where the testator confirms previous gifts to his children, he names the negroes so given. Thus, in the first clause, his language is: "I hereunto confirm the property I have heretofore given to my daughter Mary J. Perry, including the negro woman Rose, with her increase, and $1 to her, her heirs and assigns forever." So in the second: "I hereunto confirm the property I have heretofore given to my daughter Hannah Perry, including the negro woman Nancy, with her increase, and $1, to her, her heirs and assigns forever." So in the third: "I hereunto confirm the property I have heretofore given to my son Joseph Rhem, including three negroes, Grace, Sall, and Mary, with their increase, and $1, to him, his heirs and assigns forever." And in the fifth, which immediately succeeds the one now under consideration, his language is: "I hereunto confirm the property I have heretofore given to my daughter Elizabeth Loftin, including two negroes, Lydia and Peggy, with their increase, and $1, to her, her heirs and assigns forever." When in the fourth clause he departs from the settled phraseology observed in the others simply in omitting to name any negroes as given, the inference is scarcely to be resisted that in his contemplation none were given to his daughter Susan.
(198) We have no doubt that the negro Fan was the sole matter of this suit, and, therefore, hold that the decree below is substantially correct. In form, however, it ought to be affirmed only so far as it dismisses the petition in regard to the said negro, with costs, and be reversed so far as it claims the legacy of $1; and the petitioners are to have a decree therefor and with interest thereon from the death of the testator (say, 1 December, 1833), which the defendant has consented to pay. But the petitioners must pay the costs of this Court, also.
PER CURIAM. Decree accordingly.
Cited: Carson v. Ray, 52 N.C. 610; Holt v. Holt, 114 N.C. 244.