Hopkins v. Wright (17 Tex. 30, 1856)

Hemphill, Ch. J.

Augustus Hopkins and Mary K. Hopkins, his wife, citizens of Virginia, in their original petition, sue Travis GL" Wright and James D. Wortham for the recovery of about forty slaves, which they allege the said Mary was possessed of as her own property within two years prior to the institution of the suit; that the defendants took possession of them on the first day of August, 1853, and refused to deliver them to the plaintiffs, though well aware that they are the property of the plaintiff Mary. The value of the use of said slaves is alleged, and judgment prayed for the negroes or their value, and for the use of the same, and for such other and further relief as they may be entitled to in justice, law or equity. The petition was filed on the 4th April, 1855. The defendants, on the 29th May, 1855, answered that they held the property described in the petition as the executors of Timothy Wortham, deceased, in trust for the children of the said Timothy, who claim the same under the bequests of his will; that said will was duly admitted to record at the July Term, 1853, of the County Court of Red River County, Texas ; that the order admitting said will to record remains in full force, and they pray that the legatees be made defendants to the suit. The legatees, on the 27th Nov., 1855, filed their answer, alleging that they hold under the bequests of the will of their father ; that the slaves were his property in his lifetime, and pray that they may be quieted in their possession. On the 25th February, 1856, the plaintiffs filed their amended petition, and averred that in the year 1832 the said Timothy Wortham and the said Mary K., whose name then was Mary K. Smith, intermarried in the State of Virginia, where they had previously resided, and where they continued to reside till the year , when the said Timothy removed to Red River County, Texas, bringing with him the negroes set forth in the original petition; that the said Mary K. inherited the said negroes from her father and brother, and also real estate to the value of ten thousand dollars, which was sold during the existence of the marriage of the said Mary K. and Timothy, and the proceeds applied to the purchase of other property. The plaintiffs denied that the said slaves ever of right belonged to the said Timothy; and they further averred that by the Laws and Statutes of Virginia, in force at the execution of the said will by the said Timothy, and at the time of his death, a wife for whom no provision was made by the will of a husband, was entitled to the one third part of his estate, and that the will of the said Timothy having made no provision for the said Mary K., she is entitled to one third part of said negroes and of other personal property. They also averred that the domicil of the plaintiffs, as well as the family of the said Timothy, was in the State of Virginia ; and neither his children, wife or family ever resided in Texas. They allege the birth of children since the commencement of suit, and pray that the negroes be adjudged the property of Mary K.; but should they be decreed to belong to the estate of the said Timothy, that there be a decree for one-third of the said negroes, or their value, and for the one-third of other personal property,