Opinion
(December Term, 1835.)
Where a testator bequeathed certain slaves to the children of his daughter, and expressed his wish that his son-in-law should not have the "use or control" of the said slaves; and then subjoined, "but if she survives him, then my said daughter may have the use of said slaves during her widowhood;" it was held, that the daughter did not take a legal estate in the slaves upon which an action at law could be sustained, but that her interest was only an equitable one, and could be protected only in a Court of Equity.
THIS was an action of DETINUE for certain slaves, tried at Caswell, on the last Circuit before his Honor Judge NORWOOD.
The plaintiff claimed the slaves sued for under the following clause in the will of her father, Emanuel Wicks. "I "give and bequeath unto the children of my daughter "Lucy Bennett, Lydia and her sister Mary, all which with "their future increase, I give to them and their heirs for"ever; it is my will that Walker Bennett shall not have "the use or control over the negroes given as above to my "daughter Lucy's children. But if she survives him, then "my said daughter Lucy may have the use of the said "negroes during her widowhood and no longer." The death of Walker Bennett, and the identity of the slaves sued for, with those mentioned in the will, were proved.
His Honor held, upon this statement of facts, that the plaintiff could not maintain an action at law; that the words in the will of Emanuel Wicks, "may have the use of the said negroes during her widowhood," gave her only an equitable interest, such as a Court of Equity alone could protect. In deference to this opinion, the plaintiff submitted to a nonsuit, and appealed.
No counsel appeared for the plaintiff.
W. A. Graham, for the defendant.
It was necessary for the plaintiff to show on the trial, that under the will of her father, Emanuel Wicks, she had acquired a legal right to the slaves sued for, and we concur with the judge below in the opinion that this was not shown. It seems to us, that under that will, the slaves themselves were given wholly to the children of the plaintiff, and for her was provided a contingent benefit from the labour or hire of the slaves; which beneficial interest it is competent only for a Court of Equity to protect.
In the beginning of the clause in question, the absolute estate in the slaves is bequeathed to the children, in as strong language as could have been employed for that purpose; and there is no subsequent limitation manifesting an intent to defeat or abridge this primary disposition. The testator did not design by the term "use" to convey the idea of temporary ownership, but simply of benefit or profit. This is apparent from that part of the clause in which he guards against his son-in-law having the use or control of the slaves. He could not have apprehended that a father would take a legal interest in the property given to children, and did not insert this provision as a security against that result, but he might reasonably fear, that as natural guardian to the children, he would assume the control over the property, and thus obtain to himself its profits, unless this use were distinctly interdicted. This use, as distinct from ownership, which he declared the son-in-law should not have, he permitted to his daughter, ("she may have the use") during her widowhood. The right to this use, as distinct from ownership, is not a legal title in the slaves, which is necessary to support an action of detinue.
No other construction consistent with the language of the testator, could have been put on the will, without hazarding the defeat of his main object. If the estate to the grand-children determines in the event of their mother surviving the father, and gives place to the legal estate limited over upon that contingency, under what provision of the will, will they re-acquire the estate? It is a maxim of law, that a condition or limitation annexed to an estate, destroys the whole of the estate to which it is annexed, and not a part only of it. There can be no question but that the children were the principal objects of the testator's bounty, and were designed to take the entire interest in the slaves, legal and beneficial, subject only to the contingent provision for their mother. But let the whole estate to them be destroyed, by construing this contingent provision into a limitation, and the will makes no disposition of the property in the slaves after the expiration of her temporary dominion.
PER CURIAM. Judgment affirmed.