| Summary: | In his will of 1824, Noah Perry directed that three slaves, James, Hannah and Dempsey, should go to his wife Molly during her life or widowhood, but for them to be hired out if they do not behave. He additionally directed that his other slaves should be hired out as soon as they will bring anything. After Molly's death or remarriage, all the property was to be divided between Perry's daughters. In 1830 Joseph Biggs, the wife of the defendant Elizabeth Biggs, Perry's daughter, conveyed to the plaintiff Smithwick his interest in the slaves bequeathed to his wife after the death of Molly Perry, the widow. In 1837, after Noah Perry's death, his executor, widow and daughters divided the property by parol agreement and the subject of the suit, Anesley, came into the possession of Elizabeth Biggs. Molly Perry was still alive at the time the present suit was brought. The court nonsuited Smithwick and he appealed. The Supreme Court ruled that Perry's daughters had no interest in the slaves until the death or remarriage of their mother, and that Joseph Biggs's conveyance to Smithwick was a conveyence merely of this future interest. He therefore could not yet bring a successful suit for possession. Nonsuit affirmed.
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