USA > Virginia > Virginia colonial decisions : the reports by Sir John Randolph and by Edward Barradall, of decisions of the general court of Virginia, 1728-1741, v. II > Part 35
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37
The Testatrix did not make any Deed of Gift Conveyance appointment or Settlement of the Lands School House & Dwell- ing House mentioned in her Will to the Minister & Church War- dens of the Parish of Bruton in Virginia af'd or any other Person or Persons in Trust for the Charity in her Will mentioned or of the rest or residue of her Personal Estate given in and By the s'd Will to the Minister & Church Wardens af'd for the Charity therein mentioned twelve months (or any other time) before her Death acc'g to the s'd Act but only gave the same by her Will to the minister and Church Wardens af'd
Qu'st: Whether the Devise by the s'd Will to the Minister & Church Wardens for the time being of the s'd Parish of Bruton in Virginia & their successors of the s'd Peice or Parcel of Land with the said Schoolhouse & Dwelling House Built thereon upon Trust in the s'd Devise is a Null & Void Devise by Virtue of the Said Act
[337] Answer. This Act of the 9th George being not expressly mentioned to extend to our american Colonies I am of opinion
1 Charge? W. W. S.
--
-
1
٦٠٠
٠٠
٢٠٠
.
£
.
B366
VIRGINIA COLONIAL DECISIONS
it doth not Bind them therefore that the Devise of the Land in Virginia to a Charity is not Void by that act. But as it is a Devise to Persons & their Successors who do not make a Cor- poration I conceive it is not sufficient to Vest the real Estate but it gives a right to it in Equity in the name of the att. General in Virginia ag't the Heir at Law
Qu. 2d. Whether the Gift to Matteys School of the s'd Sum of 506. to be paid to the Minister & Church Wardens af'd of Bruton & their successors at 6.10. a year for the use of the s'd school is a good Bequest to the s'd ministers & Church Wardens af'd and their successors & if the Ex'r of the s'd Will may safely pay the s'd 50₺. to them notwithstanding the s'd Act or whether the s'd Gift is null & Void by Virtue of the s'd Act
Answer. I am of opinion this Legacy of 6.50. is good and ought to be paid by Installments of £10. annuity till the whole is paid & the Ex'r may safely pay it to the Minister & Church wardens for the Benefit of the school.
Qu. 3d. Whether the Bequest by the said Will of all the rest & residue of the Testatrix's Personal Estate after payment of her Debts and Legacies to the minister & Churchwardens for the time being of the said parish of Bruton in Trust for the use & Behoof of the said Matteys School for the purposes in the said Will above mentioned is a good Bequest to the said Minister & Churchwardens & if the said Ex'r may safely Pay to the Minister & Church Wardens af'd of Bruton all the Rest & Residue of the Testatrix's Personal Estate for the purposes & Upon the Trust in the Will mentioned not withstanding the said Act or Whether the Bequest of the rest & Residue of the Testatrix's Personal Estate is Nul and Void by Virtue of the said Act
Answer. I am of Opinion this residuary Bequest is good & the Ex'r may safely pay the residue to the Minister & Church Wardens
Qu. 4th. Which is the Best and safest way for the Ex'r to act to prevent his Coming into any trouble about the Lands Devised to the Minister & Church Wardens [338] afs'd and also the £.50. & the Residue of the Testatrix's Personal Estate Bequeathed upon Trust for the Charitable Uses afores'd
Answer. The safest Way for the Ex'r to act would be for an Amicable suit or information of the Att'o General the Relator of the Minister & Church Wardens ag't the Ex'r Heir & to Estab- lish the Charity & to have the proper Directions for the Manage-
r
٠٠٠ ٢٠٢٤
٠٨٠
B367
BARRADALL'S REPORTS
ment of it, if all parties live here it may be brought into the Court of Chancery here but if the Heirs live in Virginia the Informa- tion should be brought into the Court of Equity in Virginia & on such information, such Directions may be given as will indim- nify the Executor in Relation to his Conduct
Signed D. Ryder
9th March 1743.
Robert Jones Junior, and Sarah his Wife
And Dudley Richardson and Martha his Wife
Appellants
James Shields Respondent
The Appellants Case.
By a Certain Act of Assembly passed in the Fourth year of Quee Anne it is Enacted that all Negroes within this Dominion or Colony of Virginia shall from thenceforth be adjudged to be real Estate and descend to the Heirs and Widows according to the Custom of Lands of Inheritance in Fee simple in which act it is Declared and Provided that in several Cases in the Act mentioned they should be held and adjudged to be personal Estate in the same Condition they would have been if this Act had never been made and that upon [sic]
Which Act was afterwards Explained by [sic]
another act of assembly, which passed in the first year of his present Majesties Reign Entitled an Act to explain and amend the Act of the fourth of Queen Anne by which Act after reciting that that Act [339] had been found bene- ficial for the preservation and Improvement of Estates in this Colony yet that many mischiefs had arisen from the various Constructions and Contrary Judgments and opinions which had been made and given thereupon whereby many people had been Involved in Lawsuits and Controversies which was still likely to Increase: For remedy whereof and to the End the said Act might be fully Explained and understood; it is Enacted amongst other things, in the words following Viz: that the said Act of the fourth of Queen Anne shall hereafter be Construed and the true Intent and Meaning thereof is hereby declared to be in the several Cases hereafter mentioned as the same is herein after mentioned and declared and not otherwise; viz; that the pro- perty of a Slave should be Transferable by Bargain and sale gift or Will in the same manner as if such slave were a Chattle and
1
؟
1.
..
-
3 mld All too le vest bonusfront JA
og and to
1
! !
!٠٠٠ ١٠
٠٠
::
...
B368 VIRGINIA COLONIAL DECISIONS
no remainder thereof should be Limited other than a Chattle might be by Law, as thereafter mentioned: "and that where "any Slave or Slaves had been or should be, Conveyed, Given, " or Bequeathed or had or should descend to any Feme Covert, " the Absolute Right property and Interest of such Slave or " Slaves was thereby vested and should accrue to and be vested " in the Husband of such Feme Covert and that where any Feme " sole is or should be possessed of any Slave or Slaves as of her " own proper Slave or Slaves the same should accrue to and be " absolutely vested in the Husband of such Feme when she shall " marry
And that where any Person hath heretofore by Deed or Will disposed of any Slaves for the Life or Lives of any person or persons whatsoever with Remainder over, such Remainder should be good to transfer the Absolute property of such Slaves to the persons in remainder: by which Act it is provided that nothing therein should be Construed to alter the property of any Slaves which had been before adjudged to belong to any person whatsoever.
William Pinkethman late of York County in the Colony of Virginia being in his Life time and at the time of his Death seised and possessed of sundry Negro Slaves made his Will the first of December 1712; and therein amongst other things de- vised seven Negro Slaves, viz Hannibal and Betty his Wife, Peter Follitt, Betty a Girl, and Tom a Boy, Billy a Boy, and Young Hannibal a Boy to his Daughter Rebecca Pinkethman her Heirs and Assignes forever
The Will of Mr. Pinkethman 1. Dec'r 1712.
[340] The Testator soon after died leaving Rebecca his only Child and Heir at Law who afterwards and since the passing this Act of the fourth of Queen Anne, and when she was possessed of the said seven Slaves intermarried with one Robert Cobbs of York County afores'd who by virtue of such his intermarriage became intitled to the absolute and beneficial Interest and property of and in the said seven Slaves and their Increase and upon his marriage possessed himself thereof
The said Rebecca Cobbs afterwards died in the Life time of her said Husband leaving Issue one Daughter Elizabeth her only Child and Heir at Law.
Rebecca died 1712.
1
٠ ٤٫٠
B369
BARRADALL'S REPORTS
The said Robert afterwards intermarried with another Wife named Elizabeth by whom he had Issue two Children only Viz: the Appellants Sarah and Martha, the said Robert Cobbs being possessed of the said Slaves and other Real & personal Estate duly made his Will dated 10th of December 1725. and thereby after giving several specifick Legacies " devised the residue of his Estate Real and personal to his said Wife Elizabeth for her Life; and after her Decease to the Appellants his Daughters Sarah and Martha Equally if then Living " and of his said Will appointed the said Elizabeth his Wife and one Daniel Allen since deceased Executors who after the Death of the said Robert Cobbs viz; the 21st February 1725 duly proved the same
Upon the Death of Robert Cobbs Elizabeth his Widow and Devisee for Life of the said Slaves intermarried with one Samuel Weldon and they were intitled to have possessed themselves of the said Slaves but the said Eliza'h Cobbs daughter of the said Robert by his First Wife having in the Life time of the said Elizabeth Weldon intermarried with the respondent James Shields of Virginia Aforesaid the said Samuel Weldon and Eliza- beth his Wife either under some agreement or through mistake or imposition misjudging her Title were prevailed upon by the said Respondent to permit him to take and keep possession of the said Slaves and their ofspring and Continue the possession during the Life of the said Elizabeth Weldon.
The said James Shields put in his Answer plea and Demurrer to the said Bill
The said plea and Demurrer were argued and the plea ordered to stand for an Answer and the Demurrer being overruled with Costs from which order the respondent prayed an appeal to the General Court but was refused as the said order did not ; determine the right to the Negroes in Question
The respondent afterwards put in his further Answer and there by and by his former Answer admitted and stated the said [341] Wm. Pinkethmans Will and Death leaving the said Re- becca his Heir at Law seised as aforesaid who afterwards inter- married with Robert Cobbs and by him had the said Elizabeth and Died and that the said Robert made such Will as in the Bill and died leaving Elizabeth his Widow and that he married Eliza- beth the daughter of Rebecca and in her right got possession of the several slaves of whom the only then living were Hannibal a Man Jack a Man Squire a Man James a Boy Will a Man George
-
MITM
:
1
11
٠٠٠
.
Sof tu nous Pelaren, grow of fl and grigbetalar avismogan ic
-
B370
VIRGINIA COLONIAL DECISIONS
a Boy Rippon a Boy Tom a Boy Betty a Woman and Patt a Girl and insisted that he had a right thereto as the Lands and Slaves of the said Pinkethman descended in Fee to the said Rebecca in 1712; and that they afterwards descended in Fee from the said Rebecca upon her death in 1715. to Elizabeth her only daughter and Heir then an Infant of 11 years who entered and was seised as the Law required; and that the said Robert Cobbs had no right in them at the time of making his said Will but held them as Guardian to his s'd Daughter and in pursuance of a Contract previous to his Marriage as he often declared and disclaimed all right thereto and never mentioned them in his Will and on account of their descending to his said Daugh'r gave a larger share of his own Estate to his other Daughters the Plaintiffs and when he died no inventory was taken but that Hannah Shields being Chosen Guardian obtained a Decree for possession of the said Slaves and Defendant relying on her said Title and having Enjoyed possession so long without inter- ruption plead an Act of Assembly of 4th of Queen Anne for Limitation of Actions in Bar to the Plaintifs' right to the said Slaves.
The Cause being at Issue and one Witness having been exam- ined, The Cause came on to be heard in the said County Court of York; when it was ordered and decreed that the Plaintiff's (now appellants) Bill should stand Dismsd without costs on either side.
The appellants conceiving themselves Agrieved by the said Decree of the County Court appealed therefrom to the General Court.
The said Appeal came on to be heard before the said General Court and the Decree of the County Court was affirmed but without Costs
The Apealants conceiving themselves likewise agrieved by the said Decree of the General Court immediately prayed an appeal therefrom to his Majesty in Council; which was granted accord- ingly and the Usual security given
The apellants do humbly conceive that the said decree and Dismission are Erroneous and ought to be reversed for the follow- ing amongst other
[342] Reasons:
First. That Negro Slaves were in their Nature and before the ' passing of this Act of the 4th of Queen Anne Chattels in their
-
·
. :
.1
.。
٢٠٠٫٠٦٠
B371
BARRADALL'S REPORTS
own Nature and what a Husb. there gained the property of in the same manner he gained the property of any other Chattel belonging to the Wife
Secondly. This Stat. of the 4th of Queen Anne neither altered the Law nor intended to alter the Law in this respect this act being made to prevent Negroes from being Distributable amongst the nex of Kin or going to Executors or administrators by which means they woud be divided and dissipated and in order to pre- serve them intire in Families to make them descendible as In- heritances to the Heir at Law but as to every other respect to leave them as much Chattels as they were before, and Conse- quently subject to the Husbands acquiring a property therein to the Wifes Slaves by marriage as the Law stood before the passing this Act.
Thirdly. That if a Doubt could have arisen upon the Con- struction of this Act of the fourth of the Queen touching this matter that Point is now cleared up and made certain by the Act of the first of his present Majesty: for by this Act of the first of his pres't Majesty which is neither a Repeal of the fourth of Queen Anne nor an Introduction of any new Law but merely declara- tive of the sence and mean'g and Effect of the former Statute of the fourth of Queen Anne it is Expressly declared That it was not the intent of that Act of the fourth of Queen Anne to take away or alter that right and property which husbands were In- titled to or might gain in or to such slaves as were the property of their respective Wives
Fourthly. That there never was any Decree or Determination touching the property of the Slaves and their offspring prior to the Exhibiting the Appellants Bill or to the Decree of the county Court of York in the present Cause
Fifthly. That the absolute property of the said slaves became vested in the said Rob't Cobbs upon his marriage with the said Elizabeth. the Devisce and Heir at Law of the said William Pinkethman who first devised the s'd Slaves and the said Rob't' Cobbs had thereby full power to devise the said Slaves and their offspring and as he has devised all his Real and personal Estate to the Appellants Sarah and Martha after the Death of their said Mother, the Appellants Rob't Jones and Dudley Richardson in their Right are now become well Entitled to the said Slaves and their offspring and therefore the said Court ought not to have decreed the Appellants Bill to be dismissed but ought to have
1:
١٠٠
جر ٠٫٠١١
:
٠١٠٠٠٠٠٠
malaW how wat to wel sy nal ban mety ( per diodesile
B372
VIRGINIA COLONIAL DECISIONS
ordered the [343] said Respondent to have Delivered the said Slaves and their Offspring to the Appellants and to have ac- counted to the appellants for their Labour from the Death of the said Eliz. Weldon; and also to have ordered the said Appel- lants their Costs of Suit to be paid by the Respondent
Wherefore the s'd Appellants humbly hope that the s'd Decree of Disml shall be reversed and that such other order shall be made therein by your Lordships as shall be just.
W. Murray. K. Evans.
Robert Jones Jun'r and Sarah his Wife; and Dudley Richard- son and Martha his Wife (the said Sarah and Martha being two of the Daughters and residuary Devisees of the Estate of Rob't Cobbs deceased)-Plts. below now Appellants
James Shields Gent.
Deft. below and now respondent
The Respondents Case.
An Act of Assembly was passed in Virginia Intitled an Act declaring the Negro Mulatto and Indian Slaves within this Dominion to be Real Estate; whereby it was inter alia, Enacted in the Following Words Viz
" That from and after the passing this Act all Negro Mulatto "and Indian Slaves in all courts of Judication and other places "within this Dominion shall be held taken and adjudged to " be Real Estate (and not Chattels) and shall descend unto the " Heirs and Widows of Persons departing this Life according " to the Custom and manner of Land of Inheritance held in " Fee simple."
Another Act of Assembly was afterwards passed in Virginia intitled an Act for Limitation of Actions and avoiding of Suits; whereby it was inter alia Enacted in the following Viz:
" That all actions of Trespass quare Clausum fregit, all Actions " of Trespass, Detinue Actions sur Trover and replevin for taking ""away Goods and Chattels, all Actions of Accounts and upon " the Case (other than such Accounts as Concern the Trade of " Merchandize between Merchant and Merchant their Factors " or Servants) all Actions of Debt grounded upon any Lending or " Contract without Specialty, all Actions of Debt for Arrerages
٢٠٠
.
١٠
∴∴:
B373
BARRADALL'S REPORTS
" of Rent, all Actions of Assault and Batterey, menace, wounding " and Imprisonment or any of them which shall be sued or " Brought at any time after the end of this present session of " Assembly shall be commenced and sued within the time and " Limitation hereafter Expressed and not after, that is to say " [344] The said Actions upon the Case (other than for Slander) " and the s'd Actions for Accounts and the said Actions for Tres- "pass, Debt Detinue and Replevin for goods and Chattels and " the said Action of Trespass quare Clausum fregit within two " Years next after the End of this present Session of Assembly, " or within five Years next after the Cause of such Actions or " Suit and not after.
" And the said Actions of Trespass of Assault Baterry wound- "ing and Imprisonment or any of them within one Year, next " after the End of this present session of Assembly or within " three years next after the Cause of such Actions or Suit and " not after.
" And the said Action upon the Case for Words within one " year after the End of this present Session of Assembly, or within " one year next after the words Spoken and not after.
" Provided nevertheless and be it further Enacted that if any " person or Persons that is or shall be intitled to any such Action "of Trespass for Assault Menace Battery Wounding or Im- " prisonment be or shall be at the time of any Such cause of " Action given or accrued fallen or come within the Age of 21. " Years Feme Covert, Non compos mentis Imprisoned beyond " the seas out of the Country, that then such persons shall be " at Liberty to bring the same Actions so as they take the same " within such times as are before Limited after their coming to "or being of full age, Discovert, of sane Memory at Large and " returned from beyond the Seas or from without this Coloney as " by other persons having no such impediment should be done"
William Pinkethman being seised of an Estate of Inheritance in Fee Simple of and in Sundry Lands and Negro Slaves by his last Will of this date devised to his Daughter and only Child Rebecca Pinkethman and to her Heirs and Assignes forever, seven particular Negroes and died soon after making such Will which was proved (in the County Court) on the 16th of February next after the Date thereof.
The said Rebecca Pinkethman the Devisee was the Testators only Child and heir at Law and as such she Claimed all her
1
٠٠٠٠٠:١٠
:..!
١٠
一
1
B374
VIRGINIA COLONIAL DECISIONS
fathers Lands & Slaves and being seised of the same in Fee simple she Intermarried with one Rob't Cobbs
The said Rebecca Cobbs died in the Year 1715 in the Life time of the said R. Cobbs leaving one Child by him a Daughter Eliz. an Infant of very tender years and the s'd Slaves descended to the s'd Infant Elizabeth as Heir at Law to the said Rebecca her Mother but her Father Rob't Cobbs as Guardian to his s'd Daugh'r and in no other right, took both his s'd Daughter's Land & Negroes into his Possession and Continued her Negroes upon her Lands and Survived Rebecca his first Wife 10 yrs. [345] Robert Cobbs after his first Wifes Death married a second time Elizabeth by whom he had two other Daughters the now Appellants
Sarah & Martha.
The s'd Rob't Cobbs altho' he so long survived his first Wife never set up any pretence to his s'd first Wife's Inheritance consisting partly in Lands and partly in the said Negroes and their Increase but on the contrary from time to time declared that the same belonged to his said Daughter by his first Wife & that he had no right to them
The said Rob't Cobbs made his Will and after some specifick Legacies gave in general words all the rest of his Estate Real & personal after his Debts & Funerals paid to his then Wife Eliza- beth during her natural Life and after her decease to be equally Devided between his s'd two daughters by her Sarah and Martha (the now appellants) and appointed his said second Wife Eliza- beth and one Dan'l Allen his Executors, and died, soon after the date of his Will the same being proved by both his said Executors upon the 20th of February 1725.
The said Executors never Inventoried or Considered those Negroes as any part of their Testatory Estate.
The s'd Eliz. Cobbs the Widow of the s'd Rob't Intermarried with one Samuel Weldon since deceased; but she or her after Husb. Weldon never set up any Claim, or pretence to those Negroes altho' it were their Interest so to have done had it been practicable (she being Devisee for her Life of what ever had been her Husb' Cobbs own Estate).
Elizabeth the daughter of Rebecca (having Chosen Guardian) dem'd her Slaves from the s'd Weldon and his Wife who readily delivered up the s'd Slaves and their Increase to the s'd Elizabeth.
--
il
٢٠٢
B375
BARRADALL'S REPORTS
And the respondent Shields thereafter Intermarried with the s'd Elizabeth.
After the Death of the s'd Rob't Cobbs and after all the above mentioned Transactions, a new Act of Assembly was passed Intitled an Act to Explain and amend and Act for declaring the Negro Mulatto & Indian Slaves within this Dominion to be real Estate and part of one other Act Intitled &c. the material parts whereof follow verbatim " Whereas the Act made in the 4th "year of the Reign of the late Queen Anne declaring the Negro " Mulatto & Indian Slaves within this Dominion to be Real "Estate hath been found by Experience very Beneficial for " the preservation and Improvement of Estates in this Colony; " yet many mischiefs have arisen from the various constructions "and contrary Judgments and opinions which have been made " and given there upon whereby many People have been In- " volved in Law suits and controversies which are still like to " increase for remedy whereof and to the End the s'd Act may " be fully & clearly Explained be it Enacted that the s'd Act " shall hereafter be constr'd [346] And the true Intent and " meaning thereof is bereby declared to be in the several Cases " hereafter mentioned as the same is herein after expressed and " declared and not otherwise that is to say,
" Whenever any person shall by Bargain and sale or gift " either with or w'thout deed or by his last Will and Testament " in Writing or by any Noncupative Will Bargain sell, give dis- " pose or bequeath any Slave or Slaves such Bargain Sale Gift " or Bequest shall Transfer the Absolute Property of such Slave " or Slaves to such person or persons to whom the same shall " be so sold given or Bequeathed in the same manner as if such " Slave or Slaves were a Chattel, And no Remainder of any Slave " or Slaves shall or may be Limited by any deed or the last Will "and Testam't in Writing of any Person whatsoever otherwise " than the Remainder of a Chattel personal by the rules of the " Common Law can or may be Limited except in the manner " hereinafter mentioned and directed.
" And that when any Slave or Slaves have been or shall be " conveyed given or Bequeathed or have or shall descend to any " Feme Covert the absolute right property & Interest of such " Slave or Slaves is hereby vested and shall accrue to and be " vested in the Husband of such Feme Covert."
" And that where any Feme Covert is or shall be possessed of
٢٠١٤٤١
:
கருவு மா வராது!
B376
VIRGINIA COLONIAL DECISIONS
" any Slave or Slaves as of her own proper Slave or Slaves the " same shall accrue to and be absolutely vested in the Husband " of such Feme when she shall marry.
" And that any Infant above the age of 18. Years by his "or her Last Will and Testament in Writing may dispose & " Bequeath the absolute Right property and Interest of any " Slave or Slaves whereof he or she shall be possessed
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.