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![handle is hein.slavery/ssactsengr0675 and id is 1 raw text is: Upon this cause coining on before, for further directions, it had been declared,
that Elizabeth Underwood ought to be considered as having died in the life-time of
the testator. At the time of the making the will, William Underwood had one child,
a daughter, named Sophia, who afterwards died in the life-time of the testator. John
Underwood also had one daughter at the time of making the will, Harriet, the wife
of the defendant Wilson, who survived the testator, and was his heiress at law, but
who had died since his decease, and her husband, the defendant, had taken out
administration to her.
The cause came on now for further directions, and the question was, who was
entitled to the funds in court, to which Elizabeth Underwood would have been entitled
had she been living at the death of the testator.
Mr. Solicitor General, for the defendant Wilson, contended, that Harriet, his late
wife, as survivor, would take the whole. The gift was to the children of his cousins,
and would have admitted any children of Elizabeth Underwood, who should have
been born before the death of the testator, or before her death, if she had survived
him ; therefore it did not vest till the death of the survivor of the testator, or Elizabeth
Underwood; and there being, at the death of the testator (who survived), but one
child living of John, and no child of William, it must vest in that only child of John.
Mr. Mitford, for the plaintiff, contended (Note : Vinerv. Francis, 2 Bro. C. C. 6 58,
was not cited. See Bateman v. Roach, 9 Mod. 104.-Lord R.'s note), that the
words children of his cousins William Underwood and John Underwood, must
mean those who were so at the time of making the will, and that it was the same
as if he had named them Harriet and Sophia Underwood. That, in this case, no
survivorship was given between them; therefore Harriet, as survivor, could only
[326] take a moiety, and the other moiety (of so much as was personalty) would be
undisposed of.
And Lord Chancellor [Thurlow] was of opinion, that this was a tenancy in common
from the making of the will, and that so much as was the produce of the real estate,
vested in Harriet, as heir at law of the testator ; and the moiety of that which was
produced by the personalty, goes to the personal representative of the testator.(2)
(Reg. Lib. 1790, B. fol. 615 b.)
(1) Although this decision was followed by Lord Loughborough [see the Editor's
next note] it seems to contradict several of the authorities. See the Editor's notes
and observations in Armstrong v. Eldridge, 3 Bro. C. C. 215, and in Viner v. Francis,
2 Bro. C. C. 658, &c. It is observable that Viner v. Francis was not cited in the
principal case.-From Lord Redesdale's notes.
(2) This Mary Underwood married one George Fair: upon her death, without
issue, Lord Loughborough, C., was of the same opinion, 3d Aug. 1795. Mitford
v. Wicker was cited: Viner v. Francis was not. -From Lord Redesdale's MS. notes.
WRICUr against NUTT and Another. Lincoln's Inn Hall, 3d Aug. [1791].
(Note : Cause ordered to stand over. (R. L. 1790, B. fol. 653 b.) Et vide 3 Bro. C. C.
340.)-The plaintiff's testator's property in America being confiscated, subject to
his debts, a creditor there, ought first to apply to make that property available to
payment of his debt, before he sues him personally here.(1) [Vide etiam S. C. 1 II.
BI. 136.]
The case made by the bill was as follows
That Sir James Wright, deceased, was for many years before, and in the year
1774, and from thence to the acknowledgment of the independence of the United
States of America, governor of the then province of Georgia, in North America, and
constantly resided there till the troubles in that country commenced ; in the course
of which residence he acquired very considerable property in the said province, con-
sisting of plantations, negroes, cattle, and other effects on his said plantations : that,
in the course of managing and cultivating the said plantation, Sir James Wright
purchased of Miles Brewton, of South Carolina, certain negro slaves, at the price of
£8802, 5s. current money of South Carolina, being of the value of £1300 sterling,
or thereabouts, for which he gave the said Miles Brewton his promissory note, payable
at a future day :
562
WRIGHT V. NUTT
3 BRO. C. C. 32Q.](ViewImageLocal?handle=hein.slavery/ssactsengr0675&div=1&collection=&method=preview&ext=.png&size=3)