Opinion
(December Term, 1855.)
Where a testator gives slaves to his five children, and adds, "in case any of my aforesaid children shall die without a lawful heir begotten of his or her body, then his or her share to be equally divided among the survivors;" three of the five having died, and their estates being disposed of, the fourth also died, and the fifth, who was survivor of them all, brought suit for the share of the fourth legatee, it was Held that such last survivor is not entitled to recover.
ACTION of DETINUE, tried before his Honor, Judge CALDWELL, at the Fall Term, 1855, of Halifax Superior Court.
Attorney General, for plaintiff.
Moore, for defendant.
The plaintiff declared for seven slaves; and the following facts were submitted as a case agreed, for the judgment of his Honor:
"George Zollicoffer died in the year 1802, leaving a last will and testament, by which he bequeathed among other bequests, as follows:
Fourthly. `My will and desire is, that all the rest of my estate, after my just debts are paid, consisting of negroes and stock, house-hold and kitchen furniture, plantation utensils, together with what money is due me in Switzerland, shall be equally divided between my beloved wife, Anne Zollicoffer, and my five children, John Jacob Zollicoffer, George Zollicoffer, James Zollicoffer, Julius H. Zollicoffer, and Anne Zollicoffer, and at the death of my said wife, all the land and negroes that may fall to her, shall return to James Zollicoffer. And in case of either of my aforenamed children dying without a lawful heir begotten of his or her body, that then, his or her part shall be equally divided among the survivors.' The widow died in the year _____.
"After her death, John Jacob, George and James died in the order of time in which they are named; two of them without leaving any issue. In June, 1854, Julius H. Zollicoffer died, leaving a last will, and without any issue, other than such as were born out of wedlock, and legitimated by his petition.
"The plaintiff, as the only survivor of the legatees, brings suit for the slaves which were allotted to Julius H. Zollicoffer, and it is agreed that if, upon the foregoing facts, the plaintiff is entitled to recover, then judgment is to be rendered accordingly for the said slaves, and for the sum of $338,31 as damages; but if otherwise, the plaintiff is to be non-suited."
On consideration of the above case, his Honor was of opinion with the plaintiff, and judgment was entered according to the terms agreed on. Defendant appealed.
George Zollicoffer, by the fourth clause of his will, devises as follows: "Item, my will and desire is, that all the rest of my estate both real and personal, c., shall be equally divided between my beloved wife, Anne Zollicoffer, and my five children, John Jacob Zollicoffer, George Zollicoffer, Julius H. Zollicoffer, and Ann T. Zollicoffer; and at the death of my wife, all the land and negroes that may fall to her, shall return to my son James Zollicoffer; and in case any of my aforesaid children shall die without a lawful heir begotten of his or her body, then his or her share shall be equally divided among the survivors." After the death of the testator, the property devised in this clause, was divided among the legatees, and each took possession of his allotted part. The widow is dead, and by the terms of the will, her share became the property of James Zollicoffer. All the sons are dead; John, George, and James, first three in the order of time in which they are named; only one of them leaving any issue; but which of them that was, is not stated, nor was it necessary in this enquiry. At the time the legatees took possession of their respective shares, each held it under a defeasible title. We are not called on to decide how the property so held by the legatees is to be distributed; our enquiry is, can the present action be maintained? It is brought against the administrator of Julius H. Zollicoffer, to recover the negroes which were allotted to him in the division, he having died, as alleged, without leaving any legitimate issue born of his body. It is not necessary for the purposes of this case, to ascertain at what period the defeasible legacies became indefeasible, because the plaintiff cannot maintain her position. She sues upon the ground, that Julius Zollicoffer, at the time of his death, held by a defeasible title, and the condition having failed, and she being the survivor of the children, is entitled to the share allotted to him. This cannot be. If the will had said survivors or survivor, her claim would have been more tenable. She, by herself, does not answer the requirements of the will. At the time that James died, two of the legatees were alive, to wit, Julius and the plaintiff; and if that were the period contemplated by the testator, then the legacies of Julius and Ann, became in each, indefeasible, and upon the death of Julius, intestate, his share passed to his next of kin, of whom the plaintiff is one, and she cannot litigate her rights, as such, in a Court of law.
The plaintiff places her right to recover the negroes under the will, as the survivor of all the children. I cannot better answer this position than by inserting that of the Court in Hilliard v. Kearney, Busb. Eq. 227: "This construction is totally inconsistent with the admitted facts, that, in regard to the original shares, each legatee is the primary object of the testator's bounty, and that it was his primary intention to give the property itself, and not simply to lend, or give the use of it. The amount of it is to give to the proviso the effect of so clogging all the legacies, as to deprive all the children but one, of the ownership and right to dispose of the property during their lives, and that one is to be so deprived until the death of all the others." The plaintiff cannot maintain her action.
PER CURIAM. Judgment reversed, and judgment of non-suit.