Smith Thompson

“ The question then arises, how the children of Eliza and Cynthia, born during the continuance of the life estate of the widow, are to be considered. It is admitted to be a settled rule in the state of Tennessee, that the issue of a female slave follows the condition of the mother. If, therefore, Eliza and Cynthia were slaves when their children were born, it will follow as matter of course, that their children are slaves also. If this was an open question, it might be urged with some force that the condition of Eliza and Cynthia, during the life of the widow, was not that of absolute slavery ”

“ His widow had the possession of the slaves during her life. And James Marshall is the only surviving executor. The bill further states, that the complainants and the defendants, except James Marshall and two others, who are not made parties, because they reside out of the jurisdiction of the court, are the distributees and next of kin to the testator, and that the slaves and their increase are liable to be distributed to and among the complainants and the other next of kin; and that the executor, James Marshall, refuses to distribute them, because the will directs their emancipation. ”

“ Until the period arrives when they are to become free, they remain slaves; if they die before that time, they die slaves: they are in fact slaves; but entitled to be set free in future.
Suppose a man devises, that if A is elected president, his female slave B shall be free,-she has a child born, and after its birth A is elected:-is not the child a slave, although its mother, after that event has happened, is free? ”

“ Nor, under the various dispositions of these slaves, by the will of Patrick M'Cutchen, will the law charge the surviving executor with a breach of trust or neglect of duty, in not taking the charge and management of these children. If they are slaves, and the complainants have a right to them, they have an adequate remedy at law, to assist and enforce that right. ”

“ It was the early doctrine of the courts, that a limitation of chattels for life, gave the absolute interest, but that notion is now exploded; and, consequently, where slaves are given for life, with remainder over, the first legatee takes only the specific interest given, and the right of absolute property rests in the remainder man. The cases above cited, and 2 Roper on Legacies, 351. So, where there is a devise for life along, the property, after life interest, rests in the distributees. ”

“ Mrs Hope, the sister of Beattie, and his only heir at law, filed a bill against the executor to enjoin him from executing that part of the will which related to the sale of the land and investment of the proceeds, upon the ground of its being a void devise, as the negroes could not be emancipated by will, and as they were the objects of the devise in question. ”

“ The course taken by judges Haywood and Emmerson, therefore, unprecedented as it was, proves, however, that until there was a complete emancipation of the negroes, they could not be devisees, and also that they were not ipso facto emancipated by the will. These are the reasons which have authorized us to say, that the case of Hope v. Johnson, so far as it has any bearing upon this case, operates in favour of the appellants. ”

“ Such being the case, there is no necessity for the service of process on any one; the very party to be affected by the decision, to wit the owner of the slaves, being the petitioner and in court. But in the proceeding before Sumner circuit court, under the special statute before referred to, Robert Johnson, the executor of Beattie, was the petitioner; and Mrs Hope, the distributee, to whom the negroes really belonged, was not cited to defend the petition, nor required by the law to be notified in any way ”

“ Craig and others v. Estis, Cooke's Reports 381; Preston v. M'Gaughey, Cooke 113, establish that the issue belong to the remainder man, and not to the tenant for life. These cases have never been disputed. ”