Opinion
(December Term, 1847.)
1. Where a testator who died before the passage of the act of 1830 (Rev. Stat., ch. 111, sec. 59) bequeathed certain slaves to A. and B. in trust that they should enjoy the produce of their own labor: Held, that this bequest was void, and the said A. and B. being the residuary legatees, that the absolute property in the slaves passed to them.
2. Held further, that the act of 1830 did not affect the construction of this devise, the testator having died before the passage of that act.
CAUSE removed from the Court of Equity of ORANGE, at Spring Term, 1846, by consent of parties.
Badger, Waddell, and J. H. Bryan for plaintiff.
Norwood and Iredell for defendants.
The facts of this case are not controverted, and are as follows: Dr. Umstead, formerly of Orange County, died in 1829, having made his last will and testament. In it he gives to his friends, Catlett Campbell and Thomas D. Bennehan, the plaintiff's testator, who are also appointed his executors, "a negro slave Dicey, and her two children, Emeline and Harriet, in special trust and confidence, and to and for the purposes hereinafter mentioned, that is to say, that my said friends, so soon after my decease as they shall deem it expedient, shall take the necessary legal steps to have said slave Dicey and her two children manumitted and liberated, and, in the meantime, until such manumission shall be effected, it is my will and desire that the labor of such slaves, and the profits and proceeds thereof, shall inure to the use and benefit of the aforesaid slaves only, and to the benefit of no other person whatever. And in further trust and confidence that in case the said trustees should fail in effecting the manumission of said slaves, from any (107) cause, then and in that case the labor of said slaves and the profits thereof shall continue to inure to the only proper use and benefit of said slaves and their issue, so long as they or any of them shall live." After making several other devises and bequests, the testator devises as follows: "I devise and bequeath to Catlett Campbell and Thomas D. Bennehan, their heirs and assigns forever, all the rest and residue of my estate, both real and personal." This will was duly proved, and the executors accepted the trust; and at September Term, 1829, of Orange filed their petition for the emancipation of the slaves, and procured a decree to that effect, as to Dicey, the mother, but the court refused to emancipate the children, Emeline and Harriet. Catlett Campbell died in 1845, having made his last will and testament, in which, after stating the trust reposed in him and Mr. Bennehan, he devises as follows: "I do most earnestly entreat Mr. Bennehan (if in his power) to perform the trust thus confided to us by our mutual friend, and I give to my executors full power to release any interest which I may have in said negroes, or their increase, present and future, to Mr. Bennehan, to enable him to accomplish this purpose, if such release is necessary, or to sell or to convey them to any other person or persons for a nominal price, for the purpose of effecting their freedom, as I do not desire that they should ever be considered any part of my estate." The defendant Mr. Norwood alone qualified as executor of Mr. Campbell's will, and took into his possession all the negroes held by his testator under the will of Dr. Umstead. The other defendant, being a creditor of Mr. Campbell, sued his executor, obtained a judgment, and had his execution levied on the interest of Mr. Campbell in these negroes. It is alleged that the estate of Mr. Campbell is unable to pay this judgment without subjecting his interest in the slaves to the execution.
The bill charges that the trust created by the will of Dr. (108) Umstead was such an one as was not contrary to the laws of the State, and, if invalid at the death of the testator, was good by the act of 1830 and 1831, regulating the proceedings to procure the emancipation of slaves, and that by the death of Mr. Campbell the trust survived to the plaintiff's testator, whose executor is now ready and willing to carry it into execution. But if the court should be of opinion that the trust attempted to be created is void, and that under the residuary clause Mr. Campbell had any individual property in said slaves, then that a partition may be decreed between the plaintiff and the estate of Mr. Campbell, to enable the former to perform his duty in emancipating those of the slaves which may be allotted to him, and prays an injunction to stay the sale in the meantime.
There can be no doubt that the trust attempted to be created by the will of Dr. Umstead was void. Such was the settled law of this State at the time of the testator's death. It was considered contrary, not only to the policy of the State, but to the statute law, to sustain such trusts. They have been uniformly held to be void, and the executors declared trustees for the next of kin or the residuary legatees. The leading case upon this subject is Haywood v. Craven, 4 N.C. 360. It has been followed, and the principle upon which it was decided been repeatedly recognized, in this Court. Wright v. Lowe, 6 N.C. 354; Turner v. Whitted, 9 N.C. 621; Huckaby v. Jones, 9 N.C. 120; White v. Green, 36 N.C. 49. We do not, (109) therefore, consider it, at this day, an open question. The trust intended by the will, being void, the executors became trustees for those who are entitled. In this case the next of kin cannot take the negroes, because there is a residuary clause into which they fall as not being disposed of by the will. Davie v. King, 37 N.C. 204; Jones v. Perry, 38 N.C. 200. The residuary legatees are the executors themselves; they, therefore, under the will, took the slaves Dicey and her children absolutely and free from all trusts, and held them as tenants in common, each being entitled to an undivided moiety. The interest of Mr. Campbell was subject to his disposition, either by sale or gift during his lifetime, or by his will, and by his will he does, in substance, give it to the plaintiff, for the purpose of effectuating the intention of the testator, Dr. Umstead. This bequest of Mr. Campbell is a valid one, as made since the passage of the act of 1831, and Mr. Bennehan held his own share, or moiety, discharged of the trust, and the moiety or share of Mr. Campbell subject to the trust, as directed by his will. Mr. Campbell, however, could not so dispose of his interest in the slaves as to free them from the claims of the creditors. Upon his death it became a part of the assets of his estate in the hands of his executors, and was liable to the execution of the other defendant, as well as to other creditors.
The act of 1830 can have no effect upon the devise contained in Dr. Umstead's will. Before its passage the legacy was vested in the residuary legatees, and it could not, nor was it so intended by the Legislature, divest the interest so acquired. The legatees held the property as it passed to them at the death of the testator.
The plaintiff is entitled to have partition of the slaves, according to the prayer of the bill, and he is entitled, under the will of Catlett Campbell to have delivered to him all of such slaves as may be set apart for or allotted to his executor as the share of Mr. Campbell, and which are not needed to discharge the debts of his testator. There must be a reference to the master to inquire the number, names, and value of (110) the slaves, and to make an equal division of them, as near as may be, in the first place, between the plaintiff and the defendant Norwood as executor of Campbell, and from the importance of that division to the negroes, and their equal right to emancipation, as far as it can lawfully be effected, it is proper the division should be made by lot. It must also be referred to the master to take an account of the estate of Catlett Campbell, that hath or ought to have been or may be received by the defendant Mr. Norwood, as his executor, and of the administration thereof, and also of the debts of the said Campbell remaining unpaid, and of the charges of administration; and the master will particularly report whether Mr. Norwood hath or will have assets of his testator sufficient to discharge the judgment obtained by the other defendant, or any, or what part thereof, or to discharge the other debts of his testator, Campbell, if any, or some part thereof, and what part, exclusive of said Campbell's share of the said slaves; and if he should find that any of the said debts or charges will remain unpaid after applying thereto all the assets of the testator, exclusive of his share of said negroes, the master must further inquire what balance will remain due for the debts and charges aforesaid, whether it will require the whole of the said Campbell's half of said slaves, or only a part thereof, to be sold for the payment of such balance, and, if the latter, the master will designate, by lot, a sufficient number to be sold for that purpose.
PER CURIAM. Decree accordingly.
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