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Sisters part. B was not married when the will was made, C was, but it did not appear whether she had children or not. Held C took an estate tail. Nightingale vs Bernell
15 Pick.Map reports 104-115
A Tesator gives house &c to Mrs S S and her heirs if she has any child, if not, then after her death and that of her husband to T. M. SS had a child living at the date of the Will, but who died four days in life time of Testator. Held that SS took an estate tail
Doe Dim. Jeanand vs Barrister 7[th] 292
Webb vs Herrings 2 Cn Janus 413
It is admitted that in the English reports, the terms "Son" "issue" "and" "child" have been held to create an Estate tail oftener than the term "children" for the reason as is alleged that the former are "Nomen Collectivum," we insist that the term children is "Nomen Collectivum" in Florida where the law of primogeniture is abolished, and where children is used in our cannon of descent instead of issue in the English.
Thompsons Digest 188
2[nd] Black chap 14 page 208 (Cannons)
Fredrick Mcleod & Amos L. Dell v. Philip Dell & W.M. Dell
Trial and arbitral proceedings--Florida
Remainders (Estates) -- Florida.
In 1861, the Florida Supreme Court considered the case of Ferdinand McLeod and Amos Dell v. Phillip Dell and Bennett Dell.
This case involved the settlement of two separate but interrelated estates; the first, that of Bennett Dell, family patriarch, and the second, that of his son Amos Dell.
Bennett Dellâ€™s last will and testament provides insight into the property that a wealthy Florida planter might have owned before the Civil War. Bennett willed to his wife, Eliza Dorothy, control of the plantation known as â€œStandby,â€ located near Newnansville in Alachua County. Eliza was also entitled to receive five horses, a carriage, farming tools, one hundred head of cattle, numerous hogs, household goods, furniture, and 18 slaves (named individually in the case documents).
However, if Eliza remarried, this property would revert to her children with Bennett, and thereafter to any grandchildren. Bennett also specified that $1,000 should be given in Elizaâ€™s name to the Methodist Episcopal Church she chose to attend. The specific exception to executing this provision read: â€œbut under no circumstances [should this money] be paid to any [preacher] raised North of Mason and Dixonâ€™s Line, or tinctured with Abolitionism in the least degree.â€
Bennettâ€™s will then outlined the bequest to his children with Eliza. Sarah Angelina was entitled to seven slaves; the children of Charles L., who had died in Texas, would receive money, placed in trust, upon their 21st birthdays; Mary S., who lived in Texas, would receive money only in the event that her husband died; Amosâ€™ inheritance would likewise be placed in trust. Two other sons, John and Philip, are listed as executors of the estate, along with their mother. John would become executor upon reaching 21 years of age.
All other property not specified was to be divided among the children of Bennett and Eliza, and then to the grandchildren upon their deaths. One final provision required a delay on the sale of land known as the â€œGarey Tractâ€ near Paineâ€™s [Paynes] Prairie until it reached the price of $25 per acre.
Bennett died shortly after the creation of his last will and testament. Amos then followed his father in death, apparently soon after. Amos died intestate, without a will. He had appointed Ferdinand McLeod as executor of his estate, but without a will to specifically outline the settlement of the estate. Amos was married to Mary E. and they had one son, an infant at the time of his fatherâ€™s death.
The dispute in this case revolved around the property held by Amos at the time of this death. What was part of his fatherâ€™s estate? Did this include five slaves known to have at one time been the property of Bennett the elder? According to Bennettâ€™s will, the property should, upon the death of Amos, pass on to his children, in this case the infant son.
The case then turned to the meaning of the terms â€œchildrenâ€ and â€œtheir childrenâ€ in the will of Bennett. Did Bennett intend these terms to be the manner of succession, as in â€œtheir childrenâ€ would receive the inheritance only if Bennett and Elizaâ€™s children were deceased? Or, did Bennett intend â€œtheir childrenâ€ to be a substitute for â€œchildren?â€
After a protracted debate over the meaning of these two terms and other language in the will, the court decided that the best course of action was to place in trust the property of Amos Dell, including the five slaves in question, for the future benefit of his infant son.
More on the settlement of the estate of Bennett and related Dells can be found in a second case heard in 1861, Ferdinand McLeod and Amos L. Dell v. Philip Dell and William Dell.
Florida Supreme Court
State Archives of Florida, S49, Box 473, Folder 853
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Florida Supreme Court. Fredrick Mcleod & Amos L. Dell v. Philip Dell & W.M. Dell . 1861. State Archives of Florida, Florida Memory. <https://www.floridamemory.com/items/show/260665>, accessed 28 May 2020.
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Florida Supreme Court. Fredrick Mcleod & Amos L. Dell v. Philip Dell & W.M. Dell . 1861. State Archives of Florida, Florida Memory. Accessed 28 May. 2020.<https://www.floridamemory.com/items/show/260665>.
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