Volume 200, Volume 4, Page 163 View pdf image (33K) |
HOLMES VS. MITCHELL. 163 in trust to and for the following uses and purposes, that is to say, the income arising therefrom to be applied to the mutual benefit of my uncle William Holmes, during the life of my said uncle, and my aunt Sarah Floyd, and after the death of my said uncle, to the mutual benefit of my aunt Sarah Floyd and her children, and after the death of my aunt Sarah Floyd, to the use and benefit of the children of my said aunt Sarah Floyd, until the youngest shall arrive at the age of twenty-one years, and then I will and devise the said farm, called Rose Hill, to- gether with the rest of the property so as aforesaid, left in trust to the children of my aunt Sarah Floyd, to them and their heirs forever." This bill is filed by William Holmes, the uncle of the testator, to whom, together with his aunt Sarah Floyd, the income of the trust estate was given for life, and the question is, whether the issue of the female slaves comprehended in the bequest, born since the death of the testator, must be regarded as a part of the "income," and to be so applied by the trustee for the benefit of the cestui que trusts for life. The bill in this case claims that the trustee should be compelled by decree to trans- fer to the complainant the said slaves so born since the death of the testator, or such of them as the complainant is properly entitled to, and one-half of such as may be hereafter born, and that the support of the infants may be equally charged upon the income of the complainant and the said Sarah Floyd. There can be no doubt after the numerous decisions of the highest court of this state, that the bequest for life, or for a term of years, of a female slave, or of the use of a female slave, entitles the legatee to the issue born during the existence of the life estate, or during the term, upon the principle established during the colonial government, that the issue is to be consid- ered as a part of the use and not as an accessory to follow the right of the principal. Scott vs. Dobson, 1 H. & McH., 160; Somerville vs. Johnson, ib., 352; .Hamilton vs. Cragg, 6 II. & J., 18; Sutton vs. Cretin, 10 Or. & J; 458. Many other cases could be cited to the same effect, but these are sufficient to show that the principle is too firmly settled to be shaken by any thing short of legislative authority. |
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Volume 200, Volume 4, Page 163 View pdf image (33K) |
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