Morris v. Owen

Per Cur.

The Court is of opinion, That there is no error in so much of the decree, as establishes the Verbal gift, made by Susanna Simmons to Susanna 'Edwards, one of the children of Henry Simmons, of the negro girl Joan, and her increase; and as adjudges the same a good appointment of the said slave to the said Susanna Edwards, pursuant to the power given to the said Susanna Simmons, by the will of her husband Henry Simmons in the'decree and proceedings mentioned; nor as orders the appellant Henry Morris, to deliver to the appellees, and the said David Jackson, the said slave Joan, and her increase; and to account for their profits: But that there is error in so much of the said decree as declares and determines, that the appellants-are not entitled to any other part of the estate, which' the said Henry Simmons, empowered his widow, to distribute amongst his children: This Court being of opinion, That so much, of that part of the said Henry Simmons’s estate, as'was'not, by proper act or deed, distributed, by the said Susanna Simmons, to and amongst the children of the said Henry Simmons, in execution of the power aforesaid,, remained as part of the residuary estate of the said Henry Simmons, undisposed of by his will; and ought to be divided amongst all his children, according to the directions of the statute, made for the distributions of in-testates estates: That the said Susanna Simmons had no authority, ' under the power given by the said willj to distribute, or appoint, any part of the said estate to grand children, or to any person or persons, other, than thé children of the sáid Henry Simmons: That the appellants are entitled to a distributive share of the

*residuary estate of the said Henry Simmons their grand .father^ in right of their mother Susanna Edwards deceased, who was one of the children of the said Henry Simmons; and that, after an account thereof' taken, their distributive share, or shares, thereof, should be decreed to them, according to law. Therefore so much of the said decree as is before stated to be erroneous, is' to be reversed, with costs; but the residue is to' be affirmed: And the cause is to be remanded, to the High Court of Chancery, for further proceedings to be had therein, according to the principles of this decree.