Opinion
(December Term, 1851.)
1. A testator directed certain of his slaves to be emancipated and bequeaths them a sum of money. After giving several legacies, he directs, that "the whole of his personal and freehold property, which is not already disposed of, be sold by my executors, etc., and the proceeds be divided, etc." Held, that, though the legacies for emancipation, and the money to be paid the slaves, were void, yet the residuary legatees did not take them, but as to them the testator died intestate, and they go in a course of distribution to the next of kin.
2. A residuary legacy generally passes, not only what is not disposed of, but also what turns out not to be disposed of; but an exception to this rule is, where it appears clearly, from the will, that the testator did not intend to include certain property in the bequest of the residue.
CAUSE removed from the Court of Equity of HALIFAX, at Fall Term, 1851.
Bragg for the plaintiff.
Moore for the defendant.
Thomas Hudson died about 1825, having previously (127) made and published a last will and testament, which was duly proved and recorded, and Martha, his widow, was duly qualified as the executrix thereof and took into her possession the personal property of the testator. By the will the testator devises as follows: "I lend to my said wife during her life the aforesaid negro man, Ben, and the aforesaid negro girl, Eliza Fails, the last of whom is to be emancipated at the death of my wife, together with any and all the children she may have at that time." In a subsequent clause he directs: "At my death, my will and desire is that the whole of my personal and freehold property which is not already disposed of be sold by my executrix on a credit of twelve months, and the money arising therefrom, after deducting therefrom the sum of $500, to be divided as follows, towit: one-half to my wife, Martha, one-fourth to Mary Shield, and one-fourth to her children. The $500 which I have reserved out of the sale of personal and perishable property I lend to my wife during her life; and at her death it is to be put out at interest for the use and benefit of the aforesaid Eliza Fails." And he charges his wife with the payment of his debts. The sale was made by the executrix according to the directions of the will, and she took into her possession the legacy of $500. Martha Hudson is dead, and the defendant Rice B. Pierce is her executor, and has taken into his hands and sold a negro woman, Sally, and her child, the offspring of Eliza Fails, who died during the life of the widow, Martha Hudson, and has also in his hands the $500 so as above bequeathed. All the necessary parties are before the Court, and the bill is for an account. The bill is filed by the next of kin, claiming the $500 and the proceeds of the sale of Sally as not being disposed of by the will, and the as to which they claim there is an intestacy.
(128) The answer of Pierce, the executor, admits that as to the legacy of $500 to Eliza Fails the testator died intestate, and as to the proceeds of Sally and her child he prays the advice of the Court. He alleges there were debts of the testator, to the payment of which both funds were liable. The other defendants claim that the proceeds of the sale of Sally and her child pass under the will, and that as to the $500 legacy they pray to be protected in their rights, if they have any.
The questions presented to the Court are as to the directions for the emancipation of the negro woman, Eliza Fails, and as to the $500 bequeathed her and the proceeds of the sale of slave Sally and her child.
Many cases in this Court establish the principle that such a testamentary disposition of the slave Eliza Fails and her children, as is made in the will of Thomas Hudson before the year 1830, is null and void as being for their emancipation within the State. Sorrey v. Bright, 18 N.C. 113; Pendleton v. Blount, ib., 491; Cresswell v. Emberson, 41 N.C. 154, and others. The bequest of emancipation being void, Eliza Fails and her child Sally and her child remained as slaves, and the legacy of $500 is void also. A slave cannot hold or be, in law, the owner of property. (See the above cases and Kirkpatrick v. Rogers, 41 N.C. 135.) The widow having but a life estate in them, her executor holds the proceeds of the sale of Sally and her child and the $500 in trust, either for the next of kin or of the residuary legatees. The plaintiffs contend that as to these two funds the testator, Thomas Hudson, has died intestate, and that they do not go into the residuum. It is a general rule in the construction of wills that as to personal property a residuary clause embraces not only everything not disposed of, but everything that turns out not to be disposed of. The law (129) does not suppose that a testator means to die intestate as to any of his property, and the rule is adopted to avoid a partial intestacy, but the rule is subject to limitation. In Sorrey v. Bright his Honor, the Chief Justice, after laying down the rule as to the extent of a residuary clause, proceeds: "Doubtless it may be restricted by the special wording of the will. If the residue is partial — that is, of a particular fund — the rule does not apply; so where it is clear from the residuary clause itself or from other parts of the will that the testator had in fact a contrary intention, that the residue should not be general, and that things given away or which the will professed to give away should not fall into the residue"; and in Bland v. Lamb, 2 Jac. Walker, 399, Lord ELDON observes that to take a case out of the general rule very special words are necessary, showing the intent to be clear that particular parts of the estate should not pass under the residuary clause. Apply the principle declared in these two cases to the one now under consideration, and it is manifest the residuary legatees have no right to either of the funds. The testator directs Eliza Fails to be emancipated at the death of his wife. This bequest is void — cannot take effect, of course; she and her offspring remained slaves; at his death the executrix is directed to sell the whole of his property, personal and real, not before disposed of, and he gives $500 of the proceeds to Eliza Fails and the balance to designated legatees. Now, according to law, neither the slaves nor the money passed under the will as specific legacies, and in ordinary cases would fall into the residue. But it is manifest that such was not the intention of the testator. Eliza Fails is herself one of those legatees to whom the residue is given, and, according to the rule laid down in Bland v. Lamb, there was a particular part of the estate embraced in the residuary clause which the testator did not (130) intend should go to the residuary legatees. In the will there is no specific disposition made for the children of Eliza Fails during the life of the widow. From the statements in the bill it is to be presumed that the slave Sally was born after the death of the death of the testator and the widow was entitled to a life estate in her and her child, and at her death they reverted back to the personal representative of the testator; but they constituted no part of the fund embraced in the residuary clause, for the will directs that at the death of the widow they should be emancipated. A further reason why the proceeds of the sale of Sally and her child do not pass under the residuary clause is that they constituted no part of the estates of the testator directed to be sold, both because of the emancipation clause and because they were not in existence at the death of the testator.
We are of opinion that neither the proceeds of the sale of Sally and her child nor the $500 legacy passed under the residuary clause, and that as to them Thomas Hudson died intestate and that they go to his next of kin in a course of distribution. As to the debts of the testator, they are expressly a charge upon the widow in such a way as to exonerate the balance of the estate.
PER CURIAM. Decree accordingly.
Cited: Lea v. Brown, 56 N.C. 150; Allison v. Allison, id., 237.
(131)