Waughop vs Tate & Ux'r, 1 Va. Col. Dec. 185

The Case. John Contancean an Infant by Deed dated the 17th Dec’r 1718. Conveyed several Negroes to Richard Ball for the proper use and Behoof of Peter Contancean and his Heirs who was his Brother of the half Blood J. C. made his Will the same Day but nothing of these Negroes is mentioned in it The Heir at Law of John possessed herself of the Negroes and under Waughop Claims The Pits. Wife is heir to Peter and brought Detinue ag’t Waughop and recovered and from this Judgm’t he has Appealed And the only Question is Whether the Deed of I.

C. be a good Deed in Law And I think all the IBooks ag’t it The Case of Thompson and Leach and the Opinion of the Court there 3.

Mod. 310. is expressly that the Deeds of Infants have only the form but not the Operation of Deeds But it may be objected from the late Explanatory Law of the Negro Act An’o 1705. that because it is declared that Infants may at the age of 18. by Will dispose of their Negroes, Therefore by the Equity of that Act this Deed may be construed a good Deed to pass the property of the Negroes Construed strictly and not with any Equity Answer It is a Settled point that the Statutes of Explanation must be Construed strictly and not with any Equity or Intendment Cro. Car. 34.

On the other side it was Insisted that this Deed may be Construed as part of his Will, and the Case of Green and Proud. 1. Mod. 117. and the Case in Moor where a Lre. was construed a Will were Cited And if it cou’d not be Construed as part of a Will, it may be a Codicil and the Court gave Judgm’t upon that point below for the Pits, that the Deed shou’d be construed as part of the Will, tho’ it appeared clearly by the Deed and the Will to be Otherwise And accordingly they had different Operations The Will did not take [186] Effect till after the Death of the Testor.

But the Deed had all the effect it cou’d have upon the Delivery And I think it very Strange that it should be now construed to operate as part of the Will when such a Thing was never intended in the Beginning But it was delivered as a Deed at the same time that the other was published as his last Will I gave my Opinion to my Client before the trial in the County Court that he had the property of the Negroes in dispute And I believe any Lawyer in the World wou’d have given the same Opinion