King v. Phillips — 6 Del. 349

Majority

p. 349

Southey King v. Joshua Phillips.

Headnote

Leave to amend will only be granted on payment of the costs of the term, if the amendment is such as to require a continuance of the case on the other side.

In a devise to a wife, “ during her widowhood, of one-half of a farm, also a negro slave, Hetty; further, I will unto her the privilege of getting firewood, &c., on any of my land; further, I will unto her to have and to hold, during hér natural life, the following property,” &c. Held, that the bequest of the slave to her was during her widowhood only.

Replevin for a negro slave, bequeathed by Spencer Phillips to his wife, TJnicy Phillips, in the following clause of his will: “ I give and bequeath to my beloved wife, TJnicy Phillips, during her widowhood, one-half of the farm my father gave me, with one-half of the orchard, and one-half of the buildings thereon; to have her choice; also one negro, Hetty. Further, I will unto her the privilege of getting firewood and rail timber upon any of my lands. Further, I will unto her to have and to hold, during her natural life, to use and dispose of as she may deem best, the following property, viz.,” &c. Southey King, the plaintiff, after the death of Spencer Phillips, married his widow, Unicy Phillips, and made a demand on Joshua Phillips, the defendant, who was the executor of the testator, for the slave Hetty, then in his possession, who. refused to deliver her to the plaintiff, on the ground that the gift of her to Unicy Phillips, under the will, had determined by her marriage to the plaintiff*; and the qnes

p. 350

tian was, whether the bequest to her, under the item of the will stated, was during her widowhood, or for the life of TJnicy Phillips.

The counsel for the plaintiff called a witness to prove the value of the slave, which was objected to on the other side; because the declaration was in the deiinuit only, and the value of the property was not involved in the issue; and this appearing to be the case, the plaintiff* asked leave to amend, by adding a count in the detinet, which the Court granted on payment of the costs .of the term, in case the defendant required a continuance; but the defendant did not, and the trial proceeded; and when the testimony was closed, the Court charged the jury, that the bequest of the slave to Unicy Phillips was during her widowhood only, and on her marriage to the plaintiff she reverted to the executor pf the testator, and sunk again into his personal estate, or passed under the residuary bequest to his residuary legatees.