
    Supreme Court of Errors and Appeals. Nashville.
    1813.
    SAMUEL CRAIG AND OTHERS v. JOHN ESTES.
    
      \ V Chancery. )
    The increase of a slave belongs to the person who has the general property, and not to the owner of a particular interest. [Acc. Preston v. McGaughey, Cooke, 113; 6 Y. 245.]
    The bill stated that on the 8th day of February, 1794, Tschar-ner de Graffenreid, being possessed of a certain negro woman slave named Abby, made his last will and testament, and thereby loaned said slave to his son Tscharner de Graffenreid, the younger, during his natural life, together with her future increase; and if said Tscharner, the younger, should leave no child at the time of his death, said testator devised said slave and her increase to his sons Allen and Christopher de Graffenreid; that after the death of the said testator, and in the lifetime of the said Tscharner, the younger, to wit: sometime in the year 1810, the defendant, well knowing the premises, purchased from Tscharner, the younger, a child of the said Abby, called Jenny, born after the death of the said testator, and took a hill of sale thereof, wherein said Tscharner expressed that he sold her during his life ; that the defendant soon afterwards sold Jenny to the complainants for the sum of three hundred and twelve dollars and fifty cents, for the payment of which they executed their writing obligatory, payable on the first day of September ensuing.
    The bill further stated that at the time of the sale, the defendant mentioned there was some difficulty in the title, the nature of which the complainants did not take time to examine; but required the defendant to execute a general warranty bill of sale, which he did accordingly.
    The complainant further stated that shortly after the sale they learned the true situation of the title to the said slave; and also that the said Tscharner, the younger, had died without issue; that they applied to the defendant and represented to him the state of the matter; and that in 1811 a suit was brought against one of the complainants, who had possession of the said slave, by Allen and Christopher de Graffenreid, which suit was so prosecuted that a judgment was ultimately obtained. It was also alleged that upon the bond given by the complainants to the defendant, a judgment had been recovered at the instance of the defendant. The prayer of the bill was for an injunction and general relief.
    To this bill the defendant filed a demurrer, and the principal cause assigned was, that although Tscharner de Graffenreid had only a life estate in the slave Abby, yet he had an indefeasible title to her increase, born during the continuance of the estate.
    
      Batch and Haywood, for the defendant,
    insisted that the increase of Abby born during the lifetime of Tseharner, the younger, and after the death of his father, belonged to him who had the life estate; and that, therefore, Tseharner, the younger, having a good title to Jenny, was authorized to sell her to the defendant, who would thereby acquire a good right. The rule applies as well in the common, as in the civil law, that the possessor of the mother at the time of parturition, is entitled to the increase; because he is the actual loser of her services, and can be compensated in no way more reasonably than taking the increase as a satisfaction.
    
      Trimble, for the complainants,
    was stopped by the Court.
   Overton, J.

This doctrine has been long settled, both in this State and North Carolina. The principles of the case of Timms v. Potter, determined a number of years ago in the latter State, has been constantly followed up ever since; and it was lately fully recognized in a case at Rogersville, where I sat alone. From these cases it will appear that if property, for example a negro woman, is devised to one man for life, with remainder to another, and during the life estate the woman have children, they belong not to him who has the life estate, but to the remainder man. This I take to be the settled doctrine in this State ; and I am far. from being inclined to disturb it. The increase must belong to the person who has the general property; and not to the owner of a particular interest. A negro may be considered personal by a will; and the devisor may bequeath to one for life, with the remainder over.

White, J.

I did not sit in the case determined at Rogersville, but I am perfectly satisfied with the determination. It is in pursuance of a long-, settled and established custom, and corresponds with the ideas entertained by the community in general. It would be useless to enter into an argument on the question at this day, because it is too firmly settled to be disturbed. There are strong arguments in favor of the holder of a life estate, but, at the same time, not more so than can be furnished on the other side

Let the demurrer be overruled.'  