Opinion
(December Term, 1839.)
Where a testator devised and bequeathed all his estate, consisting of land, slaves, and perishable property, such as household furniture and livestock, to his wife for life, and then proceeded, "and at the death of my wife, the property then remaining to go to my son, A. H.; and provided he should be then dead, to go to his lawful heirs, if any; and provided the said A. H. should die before his mother, and die childless, then the remaining property, after the death of my wife, to be sold, and to be applied" to certain specified purposes: It was held, that the wife took but a life estate in the land and slaves; that the son did not take a vested, but only a contingent interest in this property, and that upon the death of the son, in the lifetime of his mother, leaving children, the children took such an interest in the slaves as entitled them to apply to a court of equity to restrain the tenant from selling the slaves out of the State, and to compel her and her vendee to give security for the forthcoming of the slaves at her death.
DANIEL HALES made his will and therein devised and bequeathed as follows:
"I give and bequeath to Sarah Hales, my wife, all my estate, real and personal, during her life, and at the death of my wife, Sarah Hales, the property then remaining to go to my son, Alexander Hales; and provided he should be then dead, to go to his lawful heirs, if any; and provided the said Alexander Hales should die before his mother, and die childless, or without lawful heirs, then the remaining property, after the death of my wife, Sarah Hales, to be sold and the money to be applied to maintain worn-out traveling Methodist preachers."
(426) The testator's son, Alexander, died in the lifetime of his mother, leaving the plaintiffs, his two children. The testator's estate consisted of land, slaves, and perishable property, such as household furniture and livestock. The widow sold to the other defendants several of the slaves, and the bill charged that she threatened to sell others of the slaves to persons who would carry them beyond the limits of the State to parts unknown, so that the plaintiffs would lose all the benefit of them. It charged further, that the other defendants intended to send the slaves purchased of the widow out of the jurisdiction of the court. The bill then prayed for an injunction and that the defendants should be compelled to give security for the forthcoming of the slaves upon the death of the tenant for life, and for general relief.
After the filing of the bill, the widow, Sarah Hales, intermarried with Richard Griffin, who was thereupon made a party defendant.
The defendants by their answer insisted that under a proper construction of the will the widow had a right to dispose of all or any of the slaves, or such of the other property as should conduce to her comfort and respectability. They denied any intention of removing the slaves beyond the jurisdiction of the court, and insisted further that if the clause in the will made a good executory devise of the slaves, the remainder, after the estate for life to the widow, vested in Alexander Hales, and that his personal representative, and not the plaintiffs, would be entitled.
Alexander for plaintiff.
D. F. Caldwell for defendant.
In a considerable class of cases a devise or bequest of what shall remain or be left at the decease of the prior devisee or legatee has been held to be void for uncertainty. Bland v. Bland, 2 Cox, 309; Wynne v. Hawkins, 1 Bro. C. C., 179; Sprague v. Barnard, 2 Bro. C. C., 585; Pushman v. Filliter, 3 Ves., 7; Wilson v. Major, 11 Ves., 205; Bull v. Kingston, 1 Mer., 314; Eade v. Eade, 5 Madd., 118. But it may be remarked that where a part of the (427) property comprised in such a gift consists of household furniture, or other articles of a perishable nature (as in this case), these words may fairly be considered as referring to the use and wear by the first taker. Such, it is clear, would be the construction if it were limited to him expressly for life. Powell on Devises, 352 (Jarman note). Indeed, there is not any case in which such expressions have been held to render the gift void where the interest of the first taker was so limited for life, and Cooper v. Williams, Pre. Ch., 71, pl. 64, is an authority against such a construction. We therefore are of opinion that the widow had but a life estate in the slaves.
Secondly. We are of opinion that the testator's son, Alexander, did not take a vested interest in remainder in this property. The remainder in the land, and the executory devise in the personal property, were contingent, dependent upon the event of Alexander dying before his mother and leaving children who should survive her. Alexander died in his mother's lifetime; he was not entitled to any of the estate, as nothing vested in him. The two plaintiffs (sons of Alexander) may die before their grandmother; but if they do not, the whole estate will vest in them on the determination of her life. The context of the will shows that the testator used the words "lawful heirs" of Alexander as synonymous with the word children of Alexander. It says if Alexander shall die childless, then the remaining property, after the death of his wife, shall be sold to maintain the preachers. We therefore think the plaintiffs had a right to file this bill.
Upon the evidence, connected with the admitted facts that the widow has set up a claim to the absolute disposition of the slaves, and has actually sold some of them, this is a proper case in which security should be required for the forthcoming of the negroes, if alive, at the death of the widow, or to abide the future order of the court. The clerk of the Court is directed, therefore, to inquire and report as to the value of the said slaves, what security has been already taken, and what further security may be necessary. And the further consideration of the case is reserved.
PER CURIAM. Decree accordingly.
Cited: Hailes v. Ingram, 41 N.C. 477.
(428)