Robinson v. Robinson ( 1810 )

OPINION of the Court, by

Judge Logan.

The appellee instituted an action of detinue, for a certain slave, against the appellant, and recovered judgment in the circuit court, from which be appealed to this court.

Under a devlfe of a flave and her increase, a child born be-, fare the devjfe was written paf* fed 9 - •

She derives her right from the will of her husband ; which gives to her for life the negroes Cate, Luce, &c, and their increase. ■

The one in dispute is the child of Luce, and was born before the will was made.

The appellant claims under the same will, in which the testator, in a subsequent part thereof, devised to him and his brother all the negroes he might possess at Isis death, v ¡th their future increase, except those be* fore given.

Was'this negro before given, ⅛ the question. And it seems to the court that he was given to Mrs. Robin-1 son for her life, or widowhood. The testator when he wills to her certain negro women, he also gives with them their increase, without restricting the expression to their future increase ; but when he intends to give the children only who might be thereafter bom, he uses the expression, “ and úieit future increase.” •

But that he did not intend' to 'give this slave to the appellant, is clearly to be inferred from another part of the will, in which he devises to his two daughters the . negroes and their increase that lie obtained with his wife from her father,, to commence after she'dies. '

Luce, the mother of the hoy in dispute, is one of those ■ received from the farher-in-law. ‘ So when Mrs. Robinson shall die! her daughters will be entitled to him under the’ wilt, which seems to exclude ail possible presumption that the testator intended to pass him to his sons under the provision for them as recited» ' '

Judgment affirmed.