Roberson's Heirs v. Roberson's Executors , 21 Ala. 273 ( 1852 )

LIGON, J.

— There are two errors manifested in this record for which the decree must be reversed.

1. The decree is in favor of Mrs. Maddin and Mrs. Enlow for their supposed portions of the estate, when it is apparent that their husbands are alive, and are named in the decree, but by its terms excluded from any interest under it. In the case of Croft v. Terrell, 15 Ala. 652, it was held, that, on the distribution of an estate in Avhich the Avife is interested, the decree for her distributive share should be in the name of the husband and wife, for the use of the wife. Here the decree is in favor of the wife alone, without including the husband. "Were this the only error, it might, perhaps, be corrected here, if the parties were entitled as distributees, but as the case must be sent back in consequence of more fatal error, I have thought it best to note this one also.

2. The money in the hands of the executors, as appears from the record, is derived from the sale of the personal estate of the testator not specifically bequeathed, and the four slaves on whom the testator attempted by his will to confer their freedom. They were rightly treated as a part of the personal estate of the testator, notwithstanding he bequeathed to them their freedom; for it is well settled in this State that a slave cannot acquire property either by descent, bequest, or purchase, so that a bequest to them of freedom is void, in consequence of their incapacity to take under the will. Troter, Adm’r, v. Blocker and Wife, 6 Por. 269.

But the Probate Court seems to have treated these slaves, or the money arising from the sale of them, as a portion of the estate of the testator not disposed of by the will, and consequently ordered it to be distributed among the heirs at law of the testator, as in case of intestacy. In this, I think the court clearly erred. It is well settled that a lapsed or void legacy of personal property, goes to the residuary legatee. 1 Jar. on Wills, 302; Taylor v. Lucas, 4 Hawkes 215; James v. James, 4 Paige 115 ; Gore v. Stevens, 1 Dana 206 ; Van Kleeck v. Ref. Dutch Church, 6 Paige 600; Hayden v. Stoughton, (5 Pick. 528-537-538. As, then, these slaves were the property of the testator at the time of his death, and. are not otherwise disposed of by his will, they pass to James, John P. and Robert P. Roberson, William A. Coleman and P. H. Castlebeny, under that clause in which the testator bequeaths to them, “the balance of my (his) property of every kind,” or the proceeds thereof when sold.

Neither Mrs. Madden, Mrs. Enlow, nor Willis Roberson, is entitled to any part of it as heirs at law of the testator. If the legacies bequeathed to them have not been paid by the executors, they have their remedy against them as legatees, but no claim whatever as distributees of the estate of John Roberson, deceased.

It is needless to examine tbe other errors insisted on in tbe brief of tbe plaintiff in error. Eor those already noted tbe decree must be reversed, and tbe cause remanded.