The bill sets forth that Joseph Kemp died in the year 1821, having first made and published in writing a last will and testament, which was duly admitted to probate by the proper authority, and the executors therein having refused to qualify as such, William Kemp was appointed administrator with the will annexed. In the said will the testator bequeathed as follows: "I give and bequeath to my son William Kemp my negroes Dorcas and Ruth during his natural life, and at his death to his oldest lawful son if he arrive at the age of maturity, but if he should have no son, or he should not arrive to full age, in that case said negroes Dorcas and Ruth with increase to be equally divided between my two sons John (234) and D. W. Kemp." The bill then states that this bequest was assented to by the administrator with the will annexed, and he took possession of the said negroes as a legatee. The bill sets forth that John and D. W. Kemp died during the lifetime of the tenant for life, and that the plaintiff was duly appointed his representative; that William Kemp is dead and the defendant is his executor duly appointed; and that said William during his lifetime sold several of the negroes who were of the increase of the said Ruth and Dorcas, some of whom were carried out of the State and are in possession of persons unknown to the plaintiff; that the legacy to the said John Kemp and D. W. Kemp was a vested remainder, and upon their death carried their interest in the said slaves to their personal representatives. The bill then prays that the defendant may be decreed to deliver over to the plaintiff the whole of the negroes embraced in the said bequest, as the personal representative of the said John and D. W. Kemp, and to account with him for the negroes sold, together with their increase since said sales by the said William Kemp, his testator, and to account with him for their hires, and for general relief.

The defendant by his answer contends that the bequest to John and D. W. Kemp lapsed into the estate of Joseph Kemp, the original testator, from the fact that they died in the lifetime of the tenant for life, and admits that William never had a son, and died as set forth in the bill, and that he is the executor of his will; he further admits that the plaintiff is the rightful representative of John and D. W. Kemp, and that William Kemp during his life sold several of the negroes descendants of the original stock.

NASH, J.

The principal question presented in this case was substantially decided by this Court in Lewis v. Smith, 20 N.C. 471. The parties then were the same as in this case, except that, being at law, the (235) plaintiff sued as administrator with the will annexed of Joseph Kemp alone, and the decision was upon the same clause of Joseph Kemp's will. In that case the Court ruled that the plaintiff could not recover, because the assent of William Kemp to the legacy for life was an assent to the ulterior limitations over to John and D. W. Kemp. The legacy to John and D. W. Kemp, after the life estate given to William Kemp, was a vested legacy, subject to be divested by the birth to William of a son, and that son's attaining the age of twenty-one. William Kemp died without having any son, and of course the legacy to John and D. W. Kemp was not disturbed. If a legacy once vests, though liable to be divested on a contingency, it can not be divested unless the contingency does happen, and, upon the death of the remainderman, passes to his representative. 1 Mad. ch. 16; 3 Meriv., 343; Harrison v. Freeman, 5 Ves., 207; Smither v. Willock, 9 Ves., 234. We think therefore that the plaintiff is entitled to relief, but not to the particular relief he seeks. In all cases of a tenancy for life with remainder over, the remainderman is entitled to the aid of a court of chancery to prevent or restrain waste, and if the tenant for life of personal property aliens it fraudulently, he in remainder may either pursue the specific property in the hands of the alienee, or may by a bill in equity claim from the estate of the tenant for life redress for the injury sustained from him. We do not doubt that the tenant for life of personalties [personalities] may rightfully sell his interest in them, and that his vendee will, by such sale, acquire in the property sold the same interest as his vendor had, and when the tenant for life does so sell, the person in remainder has no claim upon the property itself, during the existence of the life estate, and can only ask the aid of a court of equity to the securing of it, and if it is destroyed his remedy is gone. He has no claim against the estate of the tenant for life; he has done only what the law allowed him to do. If, however, the tenant for life act in bad faith and sells the whole interest in the chattel, or sells it to a person for the purpose of being carried out of the State or to one who he knows will do so, upon his (236) death his estate will be answerable to him in remainder for the value of the chattel sold, to be estimated at the time of the sale, together with interest from the death of the tenant for life. If, however, the chattel sold, a negro for instance, has died during the life of the tenant for life, we hold that the remainderman has no claim for its value upon the estate of the tenant for life. The latter was entitled to the use during his life, and the remainderman was only entitled after his use ceased. So if the chattel has become, by lapse of time or some inevitable cause, deteriorated before the life estate falls in, the remainderman is entitled only to that which remains, and the value in that case would be estimated at the time of the death of the tenant for life, with interest from that time.

The plaintiff is entitled to a decree for such of the slaves in the possession of the defendant, as are of the original stock or their increase, together with their heirs since the death of William Kemp. It is referred to the master to take an account of the other negroes that were sold by William Kemp. He will enquire and report, whether William Kemp in selling the said negroes disposed only of his life estate, or whether he sold them out and out, or any of them, or whether he sold them, or any of them with a view that they should be carried beyond the limit of this State, or whether he sold them, or any of them, to persons he knew or had reason to believe would carry them beyond the limits of the State. The master will report the sums for which the estate of William Kemp ought to be answerable to the plaintiff for any such sales, upon the principles herein declared.

PER CURIAM. DECREED ACCORDINGLY.

Cited: Hampton v. Benbury, 55 N.C. 340; Isler v. Isler, 88 N.C. 579.

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