Opinion
(June Term, 1861.)
1. Where a testator had an estate in land limited over to the defendant on his dying without issue, and he devised the said land to be worked for two years after his death for the payment of his debts, and in his will he gave valuable legacies to the defendant, which she elected to take, it was Held, that though the testator died without issue, yet the provision for the payment of the debts must be enforced.
2. Where a testator had derived certain slaves from his maternal grandfather, who had lived in the county of Martin, and it appearing to be a leading purpose with him to restore such slaves to their original place of residence, and to their family connections, he bequeathed to one in Martin as follows: "All my negroes on my Roanoke plantation (which laid in the county of Martin); also, all my negroes on my Edgecombe farms, which I got from Martin County, whether I inherited or purchased them," it was Held, that slaves bought by the testator in Martin or elsewhere and removed from that county to Edgecombe, and the children born in Edgecombe of women removed from Martin, and one born of a woman on the Roanoke plantation, but which was casually residing elsewhere, all passed under said bequest.
CAUSE removed from the Court of Equity of EDGECOMBE.
The bill in this case is filed by the executors of Henry S. Lloyd, setting forth difficulties in the way of a satisfactory administration of the estate, and praying that the several disagreeing legatees may come in and litigate the questions made in the case, and that they may be protected by a decree of the Court, as to these several matters of dispute. The bill sets out that the testator owned in Martin County one large tract, called in the will his "Roanoke plantation," which was devised to him by his maternal grandfather, Henry Slade, with a limitation over to his aunts, Helen B. Slade and Mrs. Chloe Hinton, upon his dying without issue, and two other tracts adjoining this, which the testator purchased, the one from William Slade and the other from A. Williams; also, several tracts of land and plantations in Edgecombe County; on the plantations in both of which counties the testator had large numbers of slaves, and other personal property, most of which had been bequeathed to him by his paternal grandfather, Henry Slade, (218) and his maternal grandmother, Mary Gregory.
The testator, being indebted very largely, provided for the payment of his debts as follows: "I authorize and empower my said executors to carry on my farms for the term of two years after my decease, and to adopt all measures for that purpose, if the same be necessary, to pay my debts, and to apply the income thereof as the same may be received, to the payment of my said debts," with a further devise of his town property for the same purpose.
He then proceeds to give and bequeath to his aunt, Helen B. Slade, thus: "all my negroes on my Roanoke plantation; also all my negroes on my Edgecombe farms which I got from Martin County, whether I inherited or purchased them," with a residuary clause to his sister and two brothers. About the year 1858 the testator's grandmother, Mrs. Gregory, having died, and devised to him valuable farms in Edgecombe, the testator removed his residence from Martin County, where he had formerly lived, to the county of Edgecombe, and brought with him a good many of the slaves that had been worked upon the Roanoke farms. The testator died in Philadelphia in January, 1860, and, at the time of his death there were on his Roanoke plantation twenty-seven slaves (which are set forth by name in the plaintiff's bill), all of which slaves were a part of those and their descendants bequeathed to the testator by the said Henry Slade, except one by the name of Weaver, who was bought in Richmond in 1856 and carried to the Roanoke plantation, where he has remained ever since, and never left that plantation. There were thirty-five slaves brought from the Roanoke plantation to Edgecombe, twenty-two of which had been bequeathed to the testator by his grandfather, Henry Slade, or were the descendants of such, and the remainder of them, and their increase, were bought by the testator in various counties contiguous, and were taken to the Roanoke plantation; two of these, Anderson and Thrower, were purchased in Martin County. Four of the slaves on the Edgecombe farms, to wit, Granville, (219) Betsy, Francis and London, were offspring of female slaves removed from Martin to Edgecombe, and born in the latter county.
One of the questions raised, is whether the right and interest of the defendant, Helen, in the said Roanoke plantation, devised to her as aforesaid in remainder by her father, is subject to be used according to the said will of H. S. Lloyd, to pay his debts if necessary.
A further question is as to what slaves pass by the said will to the legatee, Helen B. Slade, whether all the slaves passed that were worked on the Roanoke plantation at the time of testator's death, or only such as were derived from her said grandfather, Henry Slade, and whether the slave, Weaver, the slave purchased in Richmond, passed to her; also, whether Anderson and Thrower, slaves purchased in Martin by the testator and brought to Edgecombe, are included in the bequest to her, the said Helen. Whether Granville, Betsy, Francis and London, the descendants of female slaves brought from Martin and born in Edgecombe County after their removal, pass to Helen B. Slade under the clause in question. Sally was born of a woman which had been given by Henry Slade to the testator, and belonged to the Roanoke plantation. She had been residing among the slaves of the defendant, Helen B. Slade, for a special reason, and was so residing when the testator died; another question is, whether she passed by this clause.
The defendants answered, insisting on their peculiar views of the questions of law governing the construction of the will under consideration, but not disputing any of the facts above stated.
The cause was set down for hearing on the bill, answers and exhibits and sent to this Court by consent.
B. F. Moore, for the plaintiff.
Rodman and Dortch, for the defendants.
The bill is filed for the construction of the will of Henry S. Lloyd in certain particulars. Upon a consideration of the (220) will, in connection with the first and principal point upon which the advice of the Court is asked it seems to us clear that the testator expected and intended all the plantations worked by him to be continued in cultivation two years, for the payment of his debts, and so far as this is practicable and consistent with the rights of others, it ought to be carried into execution. With respect to the Roanoke plantation, it appears from the will of Henry Slade to be devised to the testator, Lloyd, with a limitation over, in the case of his death without issue, to Helen B. Slade and Chloe Hinton. The death of Lloyd without issue, as stated in the pleadings, vests the rights of property and possession immediately in the devisees in remainder, and with this result we can not interfere so far as Mrs. Hinton is concerned. But, inasmuch as Miss Slade receives a large estate, real and personal, under the will, she is bound to carry out, even to the prejudice of her rights, the manifest purpose of the testator in respect to his Roanoke plantation. This is upon a principle of equity that a legatee who elects to take under the will, must do so subject to all the provisions of the instrument that affects his interest. He can not accept the good and repudiate the bad. The Court is of opinion, therefore, that the profits of the Roanoke plantation, with the others, should be appropriated for two years, if necessary, to pay the debts of the estate, subject to the right of Mrs. Hinton to a proper rent for her interest in the same. It will follow that slaves given to Miss Slade must also be taken by her, subject to the incumbrance of working to pay debts for two years, if necessary. The bequest to Helen B. Slade is in the following words: "And I also give and bequeath to my said Aunt Helen all my negroes on my Roanoke plantation, also all my negroes on my Edgecombe farms which I got from Martin County, whether I inherited or purchased them." The bequest embraces, as we think, all the slaves that were at the time worked upon the Roanoke farm, without regard to the source from which they were derived. It, consequently, includes Weaver, who was purchased in Richmond and put to labor on the Roanoke farm. The child, Sally, is also (221) included, for, although being at the time among the slaves of his aunt, at her residence, the child was born on the Roanoke plantation of a mother belonging to that estate, and was removed for a special reason and purpose only. It was not permanently settled or fixed at the plantation of the aunt and, consequently, had not lost the domicil of its birth. It is to be regarded, therefore, as one of the negroes on the Roanoke plantation.
Considering the other clause of this bequest, we are of the opinion that all the slaves on the Edgecombe farms which had been removed to them from Martin, no matter how or from what quarter derived, pass under the bequest, also the slaves on the Edgecombe farms which had been bought in Martin. This will include Anderson and Thrower.
The children, Granville, Betsy, Francis and London, appear to be offspring of slaves removed from Martin to Edgecombe, but born in the latter county. While the testator is making provision to restore the slaves to their original places of residence, and to their family connections, it would be an inconsistent and harsh construction to hold that he intended to separate infant children from their mothers. We think it was intended the children should go with their mothers, and, consequently, they are embraced in the bequest to Miss Slade.
PER CURIAM. Decree accordingly.
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