Opinion
(June Term, 1867.)
The following item in a will, viz: "I give and bequeath to nephew E. P. H. all my land, etc.; and the following negroes, Bill, etc., and their increase, to take them, in possession and have the use of them after my decease, but not to be at his disposal, but for the use of his children, heirs of his own body and no others whatever:" Held, to confine the trust for the children to the slaves, and to confer upon E. P. H. an absolute estate in the land. Especially as E. P. H. was already in possession of the land before the testator's death.
MOTION to dissolve an injunction, heard before Gilliam, J., at Spring Term, 1867, of MECKLENBURG.
Vance Dowd, for the appellant.
Osborne Barringer, contra.
The bill alleged that various persons had recovered judgments against the complainant, Edwin P. Hall, upon certain debts, and had levied their executions upon a tract of land of which he and the other complainants were in possession, and having sold the same the defendant had become its purchaser, and thereupon had brought an action of ejectment against said Edwin, and having obtained judgment was about to turn the complainants out; that the land in question belonged to said Edwin only as trustee for the other complainants, who were his children, it having been bequeathed to them under the following item of the will of one Edwin Potts, deceased, viz.:
"2d. I give and bequeath to nephew Edwin P. Hall all my land, starting at the Beatty's Ford road and running so as to include said E. P. Hall's Spring and Ferrell's Spring, and running a straight line to Jane Blakely's line; and the following negroes: Bill, Phoebe, Nelly and Rufus and their increase, to take them, in possession and have the use of them after my decease; but not to be at his disposal, but for the use of his children, heirs of his own body, and no others whatever."
The bill prayed for an injunction and for other relief.
The answer alleged that the item in question gave to the complainant, Edwin, an absolute beneficial estate in the tract of land in question.
His Honor pro forma overruled the motion made upon the (257) coming in of the answer for a dissolution of the injunction, and the defendant appealed.
The case involves the construction of the following clause in the will of Edwin Potts: "I give and bequeath to nephew E. P. Hall all my lands starting at the Beatty's Ford road running so as to include E. P. Hall's spring and Ferrell's spring, and running a straight line to Jane Blakeley's line; and the following negroes, Bill, etc., to take them in possession and have the use of them after my decease; but not to be at his disposal, but for the use of his children, heirs of his own body, and no others whatever."
The question is whether the land, as well as the slaves, is given to Edwin P. Hall in trust for his children, or whether the land is given to him absolutely. The grammatical construction evidently limits the trust to the slaves, and gives the land to E. P. Hall absolutely. There is nothing to control that construction, and therefore it must prevail.
It will be observed that the clause directs him "to take them in possession and have the use of them after my decease"; but it is stated in the pleading that he had the possession of the land at the date of the will. The pronoun "them" evidently refers to the slaves and not to the land.
There is error in refusing to dissolve the injunction. This opinion will be certified to the court below, to the end that the injunction may be dissolved, etc.
PER CURIAM. Error.
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