The plaintiff in his bill set forth that John B. Shaw died in 1816, having left a last will and testament, of which, among others, he appointed John Shaw, who alone qualified, and the defendant Peyton High executors; that by the said will he bequeathed as follows: "I lend to my wife, Franky Shaw, during her natural life or widowhood, ten negroes" (naming them); and in another clause, "I give to my daughter Polly Morgan, after the death or marriage of my wife, one negro woman named Isabel, to her and her heirs forever." The bill further set forth that the said testator directed in and by his said will that after the death of his wife a large portion of his property should be divided among his children, of whom the said Polly was one. The bill further set forth that the said testator directed in and by his said will that after the death of his wife a large portion of his property should be divided among his children, of whom the said Polly was one. The bill further set forth that the said Polly Morgan was the wife of Lemuel Morgan, who is still living, and that she died after the death of the said testator and in the lifetime of the said Franky Shaw, the wife of the said testator, and that at the request of the said Lemuel Morgan administration on her estate has been duly (53) granted to the plaintiff. The bill further alleges that the said Franky Shaw, above mentioned died in 1851, having during her life held possession, by the consent of the executors, of the property bequeathed to her by the will of the said John B. Shaw, including, among others, the said woman Isabel, who has now a large increase born since the death of the said testator. The bill further alleged *Page 42 that all other persons named as executors in the will of the said John B. Shaw being dead, the defendant has qualified as the surviving executor, and has taken into his possession the said woman Isabel and her increase, as well as the rest of the estate to which the plaintiff's intestate was entitled under the said will in remainder after the death of the said Franky, and that he refuses to pay or delivery the same to the plaintiff. The bill concludes with the usual prayer for an account and relief.
The defendant in his answer admits all the facts set forth in the bill, but he avers that the said Polly Morgan left no children, and he is advised that in that event all the estate in remainder bequeathed to her by the said will, not having vested in her during her life, passed to her surviving brothers and sisters, and that therefore the plaintiff has no claim.
The cause was set forth for hearing upon bill and answer and, by consent of the parties, transferred to this Court. The plaintiff is entitled to the decree which he asks. John B. Shaw died in 1816, and by will gave to his wife, Franky Shaw, during her life or widowhood, a number of negroes, among whom was a (54) woman by the name of Isabel. By a subsequent clause he gives her absolutely, after the death or marriage of his wife, to his daughter Polly Morgan. The bequest, then, of Isabel was of a life estate in her to the widow, with a remainder to Polly Morgan. This was a vested remainder and in no way dependent upon Polly Morgan surviving her mother. It cannot be necessary to cite authorities to prove this.
By the clause, the last but one in his will, the testator directs that nine of the negroes given to his wife, together with other property, shall be sold and the proceeds divided among all his children. The widow, Mrs. Franky Shaw, died in 1851, and immediately thereafter the sale was made by the defendant High as executor of the will of John B. Shaw. This was also a vested remainder in the children of the testator, and the interest of Polly Morgan vested in her the possession, only awaiting the falling in of the life estate of Mrs. Morgan, who died in 1830. Her husband, Lemuel Morgan, is still alive. Upon the death of a feme covert her choses in action are to be reduced to possession by her personal representative for the purpose of paying her debts, if there be any, and for distributing the residue of the assets as the law directs. Her husband is entitled to take out administration upon her estate, and after discharging all just claims upon it holds the balance in his own right, the law deeming him her next of kin, or not compellable to make distribution. 2 Bl., 515. *Page 43
Upon the death of Mrs. Morgan it was the right of her husband, Mr. Lemuel Morgan, to administer upon her estate; but during the existence of the widow of John B. Shaw it was not necessary, for there was nothing to administer upon. As soon, however, as that event took place, the necessity arose, and the present plaintiff, with the consent of her husband, was duly appointed. He is entitled to a decree for the (55) negro woman Isabel and all her increase since the death of John B. Shaw. It has long been the established law of this State that the increase of slaves belongs to the remainderman, and not to the tenant for life of the mother. Timms v. Potter, 2 N.C. 234; Glasgow v. Flowers, ib., 233, and Erwin v. Kilpatrick, 10 N.C. 456. He is entitled to an account of the hires of the negroes since the death of Mrs. Shaw, and is also entitled to receive from the defendant High the share of Mrs. Morgan in the sales of the slaves and other property in which the widow of the testator had a life interest.
It must be referred to the clerk to take an account of the hire of the negroes from the time specified and also of the amount of the sales made by the defendant.
PER CURIAM. Decreed accordingly.