Opinion
(June Term, 1841.)
A testator devised as follows: "I leave the whole of my other estate, as well negroes as goods and chattels, to be equally divided between my four children, A., B., C., and D., and for my executors to have it appraised and pay off each child's part as they shall come to age, the boys to have their part at the age of 21 years, and the girls to have their part at the age of 18 years; and if either of my children die without heir lawfully begotten, then his or her part to be equally divided between my surviving children, and their heirs forever." A. died first, leaving children. B. afterwards died, leaving no children: Held, that the limitation over in the will was not too remote; that on B.'s death without issue, his share became vested in C. and D., who survived him; and that, as A. did not survive him, no part of such share vested in the personal representative or the children of A.
APPEAL from Dick, J., at Spring Term, 1841, of ANSON.
Winston for appellants.
(579) W. H. Haywood, Jr., for defendant.
Detinue for a slave named Abram, which the defendant admits is now and was in his possession when demanded by the plaintiff immediately before the bringing of this action, and he admits that he refused to deliver him to the plaintiff. It is admitted that George Ingram died in 1775, having first duly made his last will and testament, which was duly proved. The following is a copy of so much of the will as relates to this case: "I leave the whole of my other estate, as well negroes as goods and chattels, to be equally divided between my four children, John Ingram, Tabitha Ingram, Jesse Ingram, and Nancy Ingram, and my executors to have it appraised and pay off each child's part as they shall come to age, the boys to have their part at the age of 21 years, (578) and the girls to have their part at the age of 18 years; and if either of my children die without heir lawfully begotten, then his or her part to be equally divided between my surviving children and their heirs forever." The said testator left surviving him the four children named in his will, to wit, John, Tabitha, Jesse, and Nancy. John died in 1800, leaving two children. Jesse died in October, 1835, without ever having had any children. Tabitha died in March, 1836, leaving children. The plaintiffs, Hull and Patrick Threadgill, obtained letters of administration of the estate of the said Tabitha. The plaintiff Nancy is the survivor of the said four children of the said testator, and is the wife of the plaintiff John Howlett. The slave sued for is the grandson of a female slave obtained by the said Jesse under the will of the said testator, with the assent of the executor of the said will; the said Jesse having arrived to the age of 21 years. The said Jesse also left a last will and testament, which has been duly proved, and Jeremiah Ingram, the executor therein named, duly qualified and took upon himself the execution thereof. The slave sued for is held by the defendant as the agent of the said Jeremiah, the executor of the said Jesse.
If, on this statement, the plaintiffs be entitled to recover in this action, the judgment to be rendered for the plaintiffs; if not, then judgment to be rendered for the defendant. If judgment be rendered for plaintiffs, the slave sued for is of the value of $700, and the damages for detention are agreed to be $200. And the court thereupon, pro forma, rendered judgment for the defendant, from which the plaintiffs appealed.
This is an action of detinue to recover a slave by the name of Abram. Plea, non detinet. In 1775 George Ingram made his will, and, after some devises of land, he says: "I leave the whole of my other estate, as well negroes as goods and chattels, to be equally divided between my four children, John, Tabitha, Jesse, and Nancy Ingram; my executors to pay off each child's part as they shall come to age; the boys to have their part when they come to the age of 21 years, and the girls to have their part at the age of 18 years. And if either of my children die without heirs lawfully begotten, then his or her part to be equally divided between my surviving children and their heirs forever." John died in 1800, leaving two children. Jesse died in 1835, never having had children. Tabitha survived him, and died in 1836, and the two Threadgills, plaintiffs, are her administrators. Nancy is still alive, and she and her husband, Howlett, are the other plaintiffs. The slave Abram is a descendant of a female slave obtained by the legatee Jesse, under the will of his father, with the assent of the executors. There was a demand of the slave before the writ issued, and the defendant refused to deliver him. The court being of opinion, pro forma, that the plaintiffs could not recover, there was judgment for the defendant, and the plaintiffs appealed.
We think the judge erred in deciding that the law was in favor of the defendant. It seems to us that this case is clearly within the principles decided by this Court in the two cases of Zollicoffer v. Zollicoffer, 20 N.C. 574, and Gregory v. Beasley, 36 N.C. 25. In the first case, the testator, having devised lands to three of his sons, and personal estate to his daughter, says: "And in case of the death of either (580) of my aforenamed children without a lawful heir begotten of his or her body, that then his or her part shall be equally divided among the survivors." It was held that upon the death of one of the sons without children the land he had acquired under his father's will went over to his surviving brothers and sisters, and that limitation was not too remote. In the latter case a testator had bequeathed all his personal property to his four children, to be equally divided between them when his son A. arrived at the age of 21 years; and if one or two or three should die under age, or without issue, for all the property to go to the surviving ones forever. A daughter died before her arrival at full age, leaving no children, but after A. had attained 21 years: Held, that her share went over to the survivors then living; and that a child of a sister, who had died after attaining full age, was not entitled to any part of it. In the argument of the case before us it seems to be admitted that it is the law of this State that when property is given by will to children or a class of persons, and a limitation over to the survivor or survivors of the share or shares of any such children or class who should "die without issue," or without "heirs lawfully begotten," that the limitation over is good as an executory devise. But it is contended that when the testator, to the words "survivor or surviving children" superadds the words, "and their heirs forever," that circumstance will repel the inference that the testator intended that those only of his other children should take who should be alive at the death of any one of them without issue. It is argued that those superadded words make the limitation too remote. In Hudson v. Massey, 2 Meriv., 133, Sir William Grant admits that in a bequest to two persons, with a limitation to the survivor in case either should die without issue, this is a good limitation. He says it furnishes the presumption that the survivor was individually and personally to take and enjoy the legacy. But he thought the superadded words, "his or her executors, administrators, or assigns," excluded the presumption that it was a mere personal benefit that was intended for the survivor. He said that, though there should be no such failure of issue as would enable him to take personally, yet his representatives would be entitled to claim in his right whenever the (581) failure of issue might happen. Now, with all due deference to so great a judge, it seems to us an impossibility that any representative could ever urge such a claim as that supposed by Sir William Grant. Must not the representative deduce his title by averring that his principal was the survivor? Could the representative have any pretense of claim without such averment? We think he could not. If, therefore, the representative's principal was actually the survivor, he, the principal, must inevitably be permitted to take personally, and all chances of a perpetuity would of course cease. In the case now before the Court the superadded words ("and their heirs forever") appear to us to have been inserted only to denote the extent of the interest in the property that the survivors should take, and not as a limitation to a description of persons who might at any indefinite time claim as heirs. How could a person claim as heir to a survivor, if the ancestor was not in esse at the death of the first taker, so as to acquire the character of survivor? The thing appears absurd. It seems to us that no other presumption can arise in this case but that the testator intended a personal benefit to the survivors, and that the superadded words which he has made use of do not repel the presumption. Hughes v. Sayer, 1 P. W., 534.
Secondly. John died in 1800. Did his two children or his representative take? We think they do not take. The executory devise to John, in the legacy given to Jesse, was contingent; and, as John did not survive Jesse, the executory devise never vested in him; and, therefore, there was nothing to be transmitted either to his representative or children. We so decided in Gregory v. Beasley. Wilmot v. Wilmot, 8 Ves., 10, is not an authority for the defendant. It was a bequest to three children in third respectively, with a direction that they should not be put in possession till their respective attainment of particular ages (the son at 25, the two daughters at 21 years), and in case of the death of either of the said children before the ages mentioned, that third to be (582) equally divided between the two surviving children; and in case of the death of two of the children before they should attain their respective ages, then the whole estate to devolve to the testator's two brothers. One child attained the age mentioned. Of course, the two brothers, the ultimate remaindermen, then could never take. Afterwards another child died under age. And it was determined that the share of the latter was a vested interest in the child who died first, and the survivor attaining the specified age. The executory devise vested in those children that obtained the ages specified; and if they died afterwards, and then a younger child died under age, the share so being vested devolved on the representative of the child that had survived the specified age and first died. The peculiar circumstances of the case induced Lord Eldon to put upon the word "survivor" a construction which he admitted was not the natural or usual one. But in this case the contingent estate that was limited to John never became vested; it could not vest, unless he had survived his brother Jesse; he did not, and his contingent interest has vanished forever. The judgment must, therefore, be reversed, and judgment be entered for the plaintiffs on the case agreed.
PER CURIAM. Reversed.
Cited: Skinner v. Lamb, 25 N.C. 157; S. v. Norcom, 26 N.C. 257; Spruill v. Moore, 40 N.C. 287; Ham v. Ham., 168 N.C. 492.
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