mother. According to the principles of law, a person hiring an animal is entitled to the increase, because, for hiring for a time he becomes temporary proprietor for the time of the animal. And the doctrine becomes stronger where the hiring is for life. The children of Cloe were born during the life time of Maria, and while she was entitled to her services. They, therefore, belonged to her; and in case of her decease, to her legal representatives; and if there be no such representatives, which is probably the case in this instance, the children being the issue of her own daughter, they, of course, have become free. The plaintiff being one of those children, if not entitled to his freedom altogether, at all events, cannot be claimed by the defendant in this case. (B.) OF THE GRANT OR DEVISE OF THE INCREASE. 1. PULLER'S EXR'S v. PULLER. December T. 1824. 3 Rand. Rep. 83. This was a bill by Mrs. Puller against the executors of her husband, enjoining them not to sell two slaves, Garret and Icy, The word which they had advertised. The testator, Puller, on the 4th of March, 1818, made his will, and devised as follows: "I give to my beloved wife, Ann Puller, 500 acres of land, including my present dwelling, and a negro woman named Jenny, and her increase," &c. Jenny had two children, Garret and Icy; the youngest of whom was 14 years of age at the date of the will. Jenny was near 40 years of age at the date of the will, and had borne no children for the last 14 years, which was known to the testator. And the question was, whether these children passed under the will to Mrs. Puller; or, in other words, whether the term increase in a will conveyed the past as well as the future children. The Chancellor decreed in favor of Mrs. Puller, and the defendant appealed. The court (Coalter, Cabell, and the President, delivering opinions) held, that the word increase ought to be construed to apply to the future offspring, if the expression be not enlarged by the context of the will, or other admissible evidence. See Reno v. Davis, 4 Hen. & Munf. 283. Per Cabell, J., after observing the decree must be affirmed, said, there is not only no case fixing the import of the term increase, but it is most certain that when taken abstractedly, it is variously understood even among judges. Chancellor Wythe and Judge Fleming gave it an enlarged, and Judge Tucker and the Judge "increase," should ge- of the slave, include children born be fore. The owner who preceded me, gave it a restricted interpretation. I am also inclined to believe, that it is generally used in the restricted sense, so as to embrace future increase only; and although it is quite common to and expressly the term future, yet that is done out of abundant caution to remove all doubt upon the subject. 2. BANKS' ADM'R V. MARKSBURY. Spring T. 1823. 3 Little's The administrator of Rachel Banks sued Marksbury in detenue, slave to recover sundry slaves. of a female may give her to one of his children, and the future in crease to another. The word increase in The plaintiff claimed title under a deed of gift of Samuel Marksbury, which was in these words: "For and in consideration of love and good will I bear to my children, I give and grant to my son, Samuel Marksbury, my negro wench Pen; and her increase from this time I do give to my daughter Rachel Marksbury." Rachel intermarried with William Banks, and the wench had several children, now held by the defendant. The court instructed the jury, that the plaintiff had no right to recover. Per Cur. It is contended, that no interest in the slave in question passed by the deed, being her future increase which was given, and the donor had nothing in him to give at the time; and that a man cannot make a good grant, or gift, unless the thing be in him at the time of the grant, according to the maxim nemo dat quod non habet. Without controverting the correctness of this maxim, or of the principle on which it is founded, we have no hesitation in saying, that it is inapplicable to the present case. He who is the absolute owner of a thing, owns all its faculties for profits or increase; and he may, no doubt, grant the profits or increase as well as the thing itself. Thus, it is every day's practice to grant the future rents or profits of real estate; and it is held, that a man may grant the wool of a flock of sheep for years. Noy's Max. 83. The interest which the donor's daughter Rachel took in the increase of Pen must, indeed, from its nature, have been contingent at the time of the gift; but as the children of Pen were thereafter born, they would, by the operation of the deed, vest in the donee. 3. RENO'S EX'RS V. DAVIS AND WIFE. November T. 1809. 4 Hen. & Munf. 283.; KERNON V. ROBERTS, 1 Wash. THE case depended upon the construction of Reno's will, which was in the following words: "Item, I give and bequeath unto my daughter, Jane Reno, a negro woman and her increase, named a will is ambiguous, and if it cannot be Sib, to her and her heirs forever." Before the date of the will, ascertain parts of the Sib had two children, and after the death of the testator had ed by all another; and the question was, whether the claimant was entitled will taken to all the children, or only to the one born after the testator's death. The court held, that the word increase, (without the word future prefixed,) in the bequest of a female slave, was ambiguous, and must be explained by the whole will taken together; and if the meaning of the testator cannot be discovered, then parol testimony may be admitted. See Couts v. Craig, 2 Hen. & Munf. 622.; Fleming v. Willes, 2 Call's Rep. 5. Per Fleming, J. The word increase may well be construed to include the children of Sib, born as well before as after the date of the will, and ought to be construed most favorably to the legatees, and to have the same import as if, instead of the word increase, he had used the word offspring. And I am rather inclined to believe, that all the children of Sib were intended to pass by the bequest, as the word increase precedes the name of the mother; and if the testator had intended that none should pass but those thereafter born, he probably would have bequeathed Sib and her future increase, which would have removed all doubt upon the subject. 4. MARLIN V. MARLIN. August T. 1832. 3 Yerger's Tennessee together, it may be explained by parol testi mony. "future in such in crease as On the 20th May, 1813, W. Lucas, of Orange county, Vir- The words ginia, made and published his last will and testament. Among crease," in numerous bequests in the will, is the following: "I lend to my the bequest daughter, Rachel Marlin, three negroes, now in her possession, slaves, extend only Hannah, Harry, and Major, during her natural life, and after her to embrace decease, I give unto all the children of Sarah Marlin, deceased, such the negroes above named, to be equally divided among them, all their future increase, to them, their heirs, &c. forever." the same will he gave to his daughter Rachel Marlin, his negro cannot, by girl Winney, then in her possession, with all her future increase. construcIn eight or nine bequests of specified slaves in this will, is the same tended to conclusion to each, "with their future increase." with are born after the By beq tion, be ex embrace prior born Per Cur. Peck, J. The question raised by the pleadings and increase. proof is, whether the offspring of the slaves named, born before the will, passed by the words in the bequest. It appears the slaves in controversy were born prior to making the will. The case of Rind's Ex'r v. Davis and Wife, 4 Hen. & Munf. 283., is, we think, decisive of the construction to be put upon this will. There the question was, whether the term increase carried with it the negroes previously born; but the court agreed in that case, that the terms "future increase," in the will would have put the case beyond doubt, and would have included only the after-born slaves. The word future, (so often repeated,) must be taken as having been intentionally and understandingly used by the testator when he was making his will. The estate claimed by the plaintiff was a remainder. Now, what remainder, it may be asked, after the death of Mrs. Marlin? To ascertain this, we are conducted to the property loaned for life, Hannah, Harry, and Major. These are given by name, and by number, "my three negroes ;" and the conclusion of the clause, "the negroes above stated,” negatives the presumption that others than those named were intended to pass in remainder. The testator must be taken as knowing his property at the time he is making these bequests. The children of Hannah in being, when he gave those named, are not of the life estate; and how shall they be, by any construction, made part of the remainder over? We find a bequest in the will of" Nan and all her children." If it was intended that the children of Hannah, with the exception of Winney, should pass, why not use the like words as those used in the bequest of Nan? The will is carefully drawn, and the repetition of the words, "future increase," added to the fact that previously born children were bequeathed in some instances, is not only persuasive, but conclusive, to show that it was not the intention of the testator to give prior increase with "Hannah, Harry, and Major," given by name. The death of these during the life estate may produce inequality in the distribution; but we are not to forget that the property is perishable; that it could happen to others of the devisees as well as to complainants. No foresight could guard against the contingency, or anticipate with certainty the length of Mrs. Marlin's life. Be these things as they may, we follow the obvious import of the words used, and accord with the construction given to like words, relating to like property, by all judges in a sister state. The decree must be reversed, and the bill dismissed. 5. FULTON V. SHAW. January T. 1827. 4 Rand. Rep. 597.; female tion that Fanny Shaw brought an action to recover her freedom against Where a Elizabeth B. Fulton. It appears that in 1788, John Fitzgerald, slave is by a deed of emancipation, in pursuant to the act of 1782, relin- emancipated, with quished his right to Mary Shaw, and declared her free; "reserving a reservaan absolute right or claim to all such child or children which the the future said Mary Shaw may hereafter bring, or may have born of her increase body." And the question was, whether Fanny Shaw, the child of slaves, the Mary, was free, or a slave. Per Cur. Carr, J. Upon the execution of this deed, Mary Shaw became, to all intents and purposes, free, unless this effect was prevented by the subsequent reservation of an absolute right to any children she might afterwards have. It is clear, that it was not the intention of the grantor, by this subsequent clause, to modify or narrow the freedom before given. The clause relates solely to future increase. The deed bestows present freedom on Mary Shaw. The reservation had no present effect. It could only operate on a future contingency. Mary might never have children. In that case, the reservation would be a nullity. Would such a clause suspend, or in any way affect the freedom given immediately, and without qualification, by the former part of the deed? Unquestionably not. We must give the instrument its true meaning, and that is exceedingly plain. The grantor meant to emancipate Mary Shaw, fully and immediately, and to hold in slavery any children she might afterwards have; and the only question is, not a question of intention, but of power. Could the grantor, by giving the mother perfect freedom, reserve to himself any interest in her future children? When a female slave is given to one, and her future increase to another, such a disposition is valid, because it is permitted to a man to exercise control over the increase and issues of his property within certain limits. But when she is made free, her condition is wholly changed. She becomes a new creature; receives a new existence; all property in her is utterly extinguished; her rights and condition are just the same as if she had been born free. After thus devesting himself of all property in the mother, the grantor shall be reservation is void. |