Woodley v. Findlay, et al. DETINUE by the defendant in error, for a female slave named Dinah. The plaintiffs claimed title under the will of Mary Davis, of Columbia county, Georgia. The probate is as follows: Georgia, Columbia county, 6 Nov'r, 1815. In the Court of Ordinary, John Foster, and Collier Foster, two of the subscribing witnesses to the within instrument of writing, being the last will and testament of Mary Davis, deceased, after being duly sworn on the Gospel of Almighty God, say, that they saw the subscriber in life, subscribe by her mark, and acknowledge the same, to be her last will and testament, and that Robert S. Foster, signed the same at the request of the testatrix, as a witness. Sworn to and subscribed in open court, this 6th Nov'r, 1815. JOHN FOSTER, COLLIER FOSTER. H. CRAWFORD, Clerk. To this is appended a certificate of Gabriel Jones, clerk of Columbia County Court, Ga., that the transcript is a correct copy of the will, and probate, as the same appears of record in his office, dated 10th March 1844. Also, a certificate of William L. Blunt, who styles himself "one of the presiding Judges of the inferior court of said county and State, and by virtue thereof one of the presiding Justices of said court, when sitting for ordinary purposes," that Gabriel Jones is clerk of said court, &c., which is dated 30 March, 1844. The clause of the will relied on is as follows: "I lend unto my grand-daughter, Mary Foster, one negro girl, called little Dinah, during her natural life, and at her death, I give and bequeath the said negro girl, little Dinah, and her increase, to the lawful issue of her body, that may then be living, to them and each of them, share and share alike, their heirs and assigns forever; but should the said Mary die without lawful issue, then to go to her sisters, share and share alike." The plaintiff proved by Arthur Foster, that as husband of Mary Foster, and under the will of Mary Davis, he took pos Woodley v. Findlay, et al. to restrict their operation. The opposite rule applies when statutes seem to affect existing rights. [Boyce v. Holmes, 2 Ib. 54.] Upon the whole, our conclusion is, that the act in question is constitutional, and applies to all sales made after its passage. Whether the defendants being the assignees of one of the judgments, by virtue of which the lands in question were sold, are entitled to be consinered as bona fide creditors, is a matter not decided by the Chancellor, and therefore need not be now determined by us. Such seems to have been the opinion in Van Rensalear v. Sheriff of Onondaga, 1 Cowan, 443, but we decline to decide this point until directly presented. As an account is necessary, as well as other proceedings, the cause will be remanded. Decree reversed and remanded. 9 716 111 367 WOODLEY v. FINDLAY, ET AL. 1. A bequest of a slave to one for her life, and "at her death to the lawful issue of her body, that may then be living, to them and each of them, share and share alike, but should she die without lawful issue, then to go to her sisters, share and share alike," is good, as an executory devise, the sisters taking a vested remainder, as purchasers, which was not affected by the sale of the slave, by the husband of the tenant for life. 2. Where, from the organization of a court, no one of the Judges has precedence over the rest, from the necessity of the case, either of the Judges has power to make the certificate required by the act of Congress for the authentication of records. But in such a case, it must be shown that such is the organizotion of the court. 3. When the wife's chose in action accrues during the coverture, the husband may, or may not, join the wife in the suit, at his election. Error to the Circuit Court of Cherokee. Woodley v. Findlay, et al. DETINUE by the defendant in error, for a female slave named Dinah. The plaintiffs claimed title under the will of Mary Davis, of Columbia county, Georgia. The probate is as follows: Georgia, Columbia county, 6 Nov'r, 1815. In the Court of Ordinary, John Foster, and Collier Foster, two of the subscribing witnesses to the within instrument of writing, being the last will and testament of Mary Davis, deceased, after being duly sworn on the Gospel of Almighty God, say, that they saw the subscriber in life, subscribe by her mark, and acknowledge the same, to be her last will and testament, and that Robert S. Foster, signed the same at the request of the testatrix, as a witness. scribed in open court, this 6th Nov'r, 1815. H. CRAWFORD, Clerk. Sworn to and sub JOHN FOSTER, COLLIER FOSTER. To this is appended a certificate of Gabriel Jones, clerk of Columbia County Court, Ga., that the transcript is a correct copy of the will, and probate, as the same appears of record. in his office, dated 10th March 1844. Also, a certificate of William L. Blunt, who styles himself "one of the presiding Judges of the inferior court of said. county and State, and by virtue thereof one of the presiding Justices of said court, when sitting for ordinary purposes," that Gabriel Jones is clerk of said court, &c., which is dated 30 March, 1844. The clause of the will relied on is as follows: "I lend unto my grand-daughter, Mary Foster, one negro girl, called little Dinah, during her natural life, and at her death, I give and bequeath the said negro girl, little Dinah, and her increase, to the lawful issue of her body, that may then be living, to them and each of them, share and share alike, their heirs and assigns forever; but should the said Mary die without lawful issue, then to go to her sisters, share and share alike." The plaintiff proved by Arthur Foster, that as husband of Mary Foster, and under the will of Mary Davis, he took pos Woodley v. Findlay, et al. session of the slave Dinah, and kept her in possession many years in Georgia, and in 1837 moved to Cherokee county, Alabama, bringing the slave with him. That by virtue of a trust deed, executed by him in Alabama, the slave was sold to pay a debt owed by him, and purchased by the defendant. That Mary Foster, his wife, died without issue, before the sale of the slave. That the wife of S. Findlay, one of the plaintiffs, Frances D. Cummings, and Henrietta Howard, the other two plaintiffs, were the only sisters Mary Foster had. The defendant read from the statutes of Georgia, a law forbidding estates to be entailed. The defendant moved the court to charge. that if they believe Arthur Foster took possession of the negro Dinah, under the will of Mary Davis, and at the time was husband of Mary, the legatee, and that she was sold for his debts, and purchased by the defendant, plaintiff's could not recover; which charge the court refused, and charged the jury, that the sisters of Mary Foster, had such a title in the slave, as would enable them to recover in this action, in virtue of the will of Mary Davis, and that if they believe the evidence, they must find for the plaintiffs. To which the defendant excepted, and now assigns as error. The wife of Findlay S. F. RICE, for plaintiff in error. should have been joined in the suit with her husband. [ [1 Ch. P. 24.] The omission is ground of non suit, and may be taken advantage of on error. [1 M. & S. 176.] The will created an estate tail in the property, and the whole vested in the first taker. [5 Ala. Rep. 578; 6 Id. 362.] The remainder was destroyed by the execution of the deed of trust. [5 Ala. 578.] The will is not legally authenticated, as the Judge does not certify that he is the presiding Justice, and there was no proof in the court below, that there was no presiding Justice. Nor does the Judge certify that Jones was clerk of the court when his certificate was made, which was dated seventeen days after the clerk's certificate. The will does not appear to have been admitted to probate by any court in Georgia, but merely sworn to in open court. Woodley v. Findlay, et al. WHITE, contra. The will is duly authenticated. In Georgia, the Court of Ordinary is composed of Justices of the Peace, no one has precedence. [Prince's Dig. 419, § 2; 910, $ 6.] The limitation over was not too remote, as it was to the surviving sister. [1 Stew. 536; 6 Porter, 327; 6 Ala: 363; 1 Bay. 78.] When the wife's chose in action accrues during coverture, the husband may sue alone, or join his wife, at his election. [3 Litt. 281; Com. Dig. Baron and feme, 10; 3 Bac. Ab. 65; Cro. Jas. 77, 205; 4 H. & M. 453.] OR MOND, J.-In our opinion, the limitation over in this case, to the sisters of Mary Foster, the tenant of the life estate, is good by way of executory devise. The bequest is of a life estate in the slave, to Mary Foster, and at her death it is to go to the lawful issue of her body, that may then be living. It is manifest that the first limitation was not too remote, as it evidently contemplated, that the estate should vest. in her heirs at her death; it was not therefore upon an indefinite failure of issue, as it must necessarily vest upon the death of the first taker, if there is any one then in being, capable of taking. It is further urged, that the words of this devise created an estate tail, which, by the statutes of Georgia, was converted into an absolute estate in the first taker. The Georgia statute, as well as our own, was not intended to operate on personal property, as that could not be eutailed at common law. By the common law, if the language employwould create an estate tail, if the subject matter was land, being of personal property, the absolute estate would be vested in the first taker. The words necessary to create an estate tail by the common law, in a deed, are heir, or heirs of the body. The language used here, is "issue of her body." But it is settled by numerous adjudications, that the words issue and heirs of the body, in a will, are controlled, and explained, by the intention, and may be either words of limitation, or words of purchase, as may be necessary to effectuate the intention of the testator. See the numerous cases on this head, marshalled by Hayes in his second table, in his work on limitations. |