
    April 1730
    
      Marston vs Parrish.
    
      Detinue Fr Deft.
    
    
      
       S. C. in MSS. Virg. Rep. in Congr. Libry. and printed in Jeff. Rep. [Note by W. G.]
    
   John Williams was possessed of two Negro Boys Arther and Bill and two Negro Women Dinah and Nanny and made his last Will 22d. April 1713. Willed his Negroes and all other Goods and Chattels to be valued and Appraised and equally divided between his Wife and 3 Children,‘and that his Wife shou’d keep his Childrens Estates till they came of age and died soon after making his Will, After his death the Negro Woman Nanny had two Children, Obey and James, and the Negro Woman Dinah had a Child named Essex

Anthany the Widow married John Marston who supposing his Wife to be with Child, by his Will dated the first day of December 1719 Devised these Negroes viz. Arther, Will, Nancey, Essex, Obey and James to the Child his Wife was enseint of, and gave all the residue of his Estate Real and Personal to his Wife and her Heirs for ever, paying his Debts and the Orphans Estates in his Hands and died soon afterwards, but his Wife did not prove -with Child and the Widow is married to her 3d. Husband Parrish the Deft, and none of Williams Children are of age

And the Pit. as Heir at Law to Marston the 2d. Husband hath brought an Action of Detinue for Arthur, Will, Essex, Obey and James which are properly William’s Estate and for Nancey which was Marstons proper Estate

The Pit. as to the Negroes that were William’s cannot maintain an Action of Detinue. For by the Will of Wm’s they were to be equally divided between his Wife and Children, and until her part is assertained by a Partition it is uncertain which of them is hers

Therefore supposing her part vested in Marston her Second Husband, And that it descended to the Pit. as Heir at Law, the Pit. must know which of the Negroes are his to support this Action For in Detinue the Things demanded must be certain as in Debt

But there is a stronger Objection, and that is to the Pits. Right to the Thing demanded upon the Will of his Brother

The Devise to the Child in ventre Sa mere never vested because no child was born, but was for that reason void And what ever was intended to have been given to this Child if it had been born, by Law vested in the Wife to whom the residue of the Estate was given

A residuary Legatee is in Law Haredis and universal Successor to the Testator, and must have every Thing that is not given away by the Will. Here was only an Intention to give, but no Gift for want of a Person to take

Tho’ in the Case of Sprigy and Sprigy. 2. Vern 394 it was [146] Admitted that in the Devise.of the residue of a Personal Estate if a Legatee was dead at the time of making the Will the residuary Legatee shall not have the Benefit of that Legacy and that it shou’d not fall into the residue, because nothing was intended to pass by that Devise but the residue, after that and other Legacies paid.

Yet the principal Case there was of a Legacy to Thos. Sprigy if he came from beyond Sea. And the Lord keeper was of Opinion that the Devise being Contingent, and Conditioned preced’t which never happened was as if never given and the residuary Legatees shou’d have the benefit of that Legacy

So here in a Case of a Devise in ventre sa mere is a Contingent Devise, for in reality the Woman was not with Child, and the Intent of the Testor appears plainly to be that the Wife shou’d have all his Estate if there was no Child, taking Notice of no body but his Wife and the Child he supposed she went with And there is a great deal of reason and Iustice she shou’d have it, for all the Negroes except one came by her, And she is Chargeable with all his Debts and the Estates of Orphans out of the residuary Estate

The Court were of Opinion that the Pit. had no Right to recover the five Negroes that were Williams’s, And, that the Pit. shou’d recover the Negro that was Marstons as his Heir at Law  