Opinion
(June Term, 1846.)
1. A testator bequeathed as follows: "I give and bequeath to my five sons and daughters, to wit, C. C., J. C., N.C. S.C., and J. H., fifteen negroes, etc. Those fifteen negroes I give to be theirs at my death, and my wife's etc., these I give them with all the future increase. I hereby appoint my son C. C. guardian to my daughter N.C. The legacy I leave her is to be free and clear, and independent of her present husband, T. C., or in any wise to be subject to his debts, engagements or control, but to be wholly under the management of the guardian C. C. to act with it as he thinks best for her profit; and after her death, all the negroes, etc., to go to his six children, etc.": Held, that the wife was entitled to a sole and separate estate in this property; that the legal title did not pass by the words of the will to C. C. who is called guardian, but vested in the husband. But that the husband, there being no trustee interposed, is considered in equity as the trustee for the wife, holding the property to the sole and separate use of the wife, in the same manner as another trustee would have done:
2. Held, therefore, that one who purchased these negroes from the husband with notice of the trust, held them subject to the trusts in the will in favor of the wife and her children.
This was an appeal from a decree of the Court of Equity of WAYNE, at Spring Term, 1846, his Honor, Judge Manly presiding, by which decree a demurrer filed by the defendants was sustained and the plaintiff's bill dismissed.
No counsel for the plaintiffs.
Husted and Mordecai for the defendants.
Charles Croom, the elder, died in Wayne County, having first made his will, and therein, amongst other things, (249) bequeathed as follows: "I give and bequeath to my five sons and daughters now in the western countries, viz: Charles Croom, Issac Croom, Nancy Coor, Sarah Cook, and Jemima Hollowell, to them I leave fifteen negroes, by name, Will, etc. Those fifteen negroes, I give to be theirs at my death and my wife's, either to divide the negroes or sell them and divide the money equally — these I give to them with all the further increase. I hereby appoint my son Charles as guardian to daughter Nancy Coor. The legacy I leave her is to be free and clear and independent of her present husband, Thomas Coor, or in anywise not to be subject to his debts, engagements, or control but to be wholly under the management of the guardian, Charles Croom, to act with it as he thinks best for her profit; and, at her death, all the negroes or other property arising from them to go to her six children, Charles, Thomas, etc." Mrs. Croom, the testator's widow, died in February, 1844, and thereupon a division of the negroes was made and a share allotted for Mrs. Coor and her children, and delivered to an agent for Mrs. Coor and her brother, Charles Croom, who were residents of Tennessee. After that had been done, John Wright had the negroes, that had been allotted as Mrs. Coor's share, seized under original attachment against the husband, Thomas Coor, and they were afterwards sold on the execution and purchased by Wright, who had notice of the provisions of the will of Charles Croom the elder, and of Mrs. Coor's claiming under it, but yet took the negroes into his, Wright's possession, claims them as his own and refuses to deliver them either to Mrs. Coor or to Charles Croom for her.
The bill is filed by Charles Croom and by Nancy Coor by the said Charles, as her next friend, and by Mrs. Coor's six children against Wright and Thomas Coor, the husband, and, after setting forth the foregoing facts, states that it was the intention of the testator, in that clause of his will, to vest the legal title of one-fifth of the negroes in the plaintiff Charles Croom, for the separate use of Mrs. Coor during her life, clear of her husband's control, and after her death in trust for her said children; but that the plaintiffs are advised, (250) that the terms used by the testator are so vague and inapt as not to pass the title to him, or, at the least, that it is doubtful whether he, C. Croom, can maintain an action at law for the slaves, and that it is thereby rendered necessary for the plaintiff to apply to this Court, to have the rights of the parties under the will declared and secured by proper conveyances.
The defendant, Wright, put in a demurrer for want of equity, which, upon argument, was sustained, and the plaintiff appealed.
The negroes are given to Mrs. Coor for life, and then to her children; and it admits of no doubt, that the intention was that her interest should be her separate property. The words are perfectly clear: "the legacy I leave her is to be free, clear and independent of her husband, and not subject to his debts or control." His exclusion could not be more expressly declared. He therefore can take no beneficial interest in this property under the will, whether the legal title be vested in his wife's brother as trustee, or be vested in the husband himself, for want of the interposition of another trustee, since it has been long held, that, when there is a clear intention to give a separate estate to a married woman, it shall not fail for want of a trustee, but be effectuated by converting the husband, in respect of the legal title, which comes to him jure mariti, into a trustee for her. Rich v. Cockell, 9 Ves., 375; Porker v. Brooke, Id., 583. It follows, if Coor was trustee for his wife, that Wright, as a purchaser with notice, or as purchaser under execution against the trustee (Freeman v. Hill, 21 N.C. 389), takes the negroes subject to the same trust. The only question, then, which exists in the case, (251) and the only one, indeed, which was argued, is, whether Charles Croom, the son, takes this share as trustee. It is said for the defendant, that C. Croom did take the legal title, and therefore, that he might have brought detinue or trover, and that, as he had remedy at law, there is no reason why this Court should take the jurisdiction. This reduces the dispute to a single point, as to the mode of redress; it being admitted that Mrs. Coor must be entitled to it here, or at law by an action by her trustee. Upon that point, the opinion of the Court is against the defendant. Without determining whether a bill would or would not lie, under the circumstances of this case, by Mrs. Coor and her children, to have their respective interests declared and secured, although the construction of the will had vested the legal title in Charles Croom, the son, the Court holds that such is not the proper construction of the will, and that an action at law could not be sustained by him. We have little doubt that the statement in the bill is correct, that the intention of the testator was to vest the title in his son as trustee for his daughter; or, rather, if he had been fully advised of the advantages of a trustee, properly speaking, in more effectually and cheaply protecting the interest of his daughter, he would have given the legal title to the son. But we think, as the will is expressed, that intention is not sufficiently declared. The testator seems not only to have been inops consilii, but it is apparent that the instrument is very loosely drawn, and is the production of an uninformed and confused mind, so, that, as is often the case, after a disposition in terms sufficiently precise to leave no doubt of the primary intention or as to its legal effect, if that disposition stood by itself, other languages is used, conveying a glimmering of an intention somewhat inconsistent with that previously declared. But in such cases, the plain legal import of what is explicitly set down ought not to be defeated, upon the other dubious and imperfect expression of intention. Now this will in the beginning contains words of direct gift to Mrs. Coor: (252) "I give and bequeath to my five children," "to them I leave fifteen negroes," "those fifteen I give to be theirs at my death and my wife's," "these I give to them with their future increase." The gift of Mrs. Coor's share to her is just as clearly and by exactly the same terms, as the gifts of the shares of the other children are to them. But as the testator meant that the gift to Mrs. Coor should be to her separate use, he not only declares that intention in the next sentence, but expresses himself so as to show very plainly that there was at least some vague notion floating in his mind, that it was necessary or might be useful to substitute, for the husband, some other person to take care of the daughter's interest, as regards the productiveness of the property, and, perhaps, its protection from the husband or his creditors. To that end he appoints his son Charles "the guardian" of his daughter, and adds, "the legacy I leave her is to be wholly under the management of the guardian, to act as he thinks best for her profit." The natural sense of this passage is to constitute the son the manager merely of the negroes. If it stood alone, it might be taken as an implied gift to the son in trust for the daughter. But there is no necessity of such implication to raise an interest in the daughter; for there has been a previous express gift to her, which dispenses with any implication on the subject. And we think that the operation of that express gift, anxiously repeated several times, as we have seen, can not be overcome by inferences from the terms in which an interest or an authority is conferred on the son, but it is uncertain which was intended, or which the testator conceived would be best. The testator, as a parent, charged his son with the duty of affording a brother's care and protection to his sister, but he does not take from her the title, which he had just vested in her, and bestow it on the son. The consequence is, that the title of the wife under the will, devolved by law on the husband, but in trust for her to her separate use; and therefore his legal (253) title, though subject at law to be sold for his debts, was acquired by this purchaser upon the same trusts. The decree must therefore be reversed with costs, and the demurrer overruled, and the cause remanded for an answer or further proceedings thereon.
PER CURIAM. DECREED ACCORDINGLY.