Moreland v. Majors

Decision Date30 June 1805
Citation5 N.C. 48
CourtNorth Carolina Supreme Court
PartiesMORELAND ET AL. v. MAJORS, EXECUTOR OF MORELAND.
From Hillsborough.

A devises "to his son Thomas during his natural life a negro girl; and after his decease he gives the said negro and her increase to his grandson Francis, to him and his heirs forever; and in default of such issue, the said negro and her increase to be equally divided among his brothers and sisters then living." The limitation over to the brothers and sisters of Francis is valid, and the words "in default of such issue," mean the failure of issue at the death of Francis; the word "then" is here used as an adverb of time, and points to the default of issue at the death of Francis.

THIS was an action of detinue for sundry negro slaves. The jury found a verdict for the plaintiffs, subject to the opinion of the court on the following case:

"Francis Moreland, of the county of Dinwiddie and State of Virginia, departed this life in 1765, having previously published

in writing his last will and testament, in which is contained the following clause, to wit: "I lend to my son Thomas, during his natural life, one negro girl named Phebe, and after his decease I give the said negro and her increase to my grandson Francis Moreland, son of the said Thomas, to him and his heirs forever; and in default of such issue, the said negro and her increase to be equally divided amongst his brothers and sisters then living." Francis Moreland died in 1802, without having had any issue, and his brothers and sisters living at the time of his death brought this suit to recover the negro woman Phebe and her increase; and it was referred to this Court to decide "whether the limitation to the plaintiffs was valid."

This case was argued by Brown and R. Williams for the plaintiffs and Haywood for the defendant. Theauthorities relied upon are noticed in the opinion of the Court.

TAYLOR, J., delivered the opinion of the Court. The decision of this case depends upon the construction of the third clause of the will of Francis Moreland. On the part of the plaintiffs it is contended that the limitation to the brothers and sisters is so expressed that it must take effect, if at all, at the death of Francis Moreland, and that, consequently, it is within the limits prescribed by law for the vesting of an executory devise. On behalf of the defendants, it has been argued that the limitation to the brothers and sisters is void, as being to take effect after an indefinite failure of issue of Francis Moreland, to whom, likewise, the negroes are given by such words as, if applied to real estate, would amount to an estate tail, which therefore transfers an absolute interest in chattels. Upon the first argument of this case, the Court inclined to the latter opinion; but upon maturely considering the cases cited, a majority of our brethren have been led to think differently. I will state the grounds upon which their present opinion is formed, in doing which it will not be necessary to notice particularly every case that has been read, because, however proper and apposite they might be, according to the manner in which the argument has been conducted by the counsel, they are not necessary to be resorted to in the views which we have taken of the subject.

Executory devises of chattels are a departure from the ancient common law, according to which the gift of a chattel for any period of time amounted to an absolute disposition of it, and any limitation over was void. The distinction between the use of a thing and the thing itself, continued, as applied to

chattels personal, even after it was overruled as to chattels real; and whether an executory devise could be created of the former was questioned after the decision of the Duke of Norfolk's case had finally established its competency with respect tothe latter. This appears from 1 P. Williams, 1, and 2 Vern., 331. Since the period of these decisions it has not been doubted that future interests in the nature of remainders may be created in chattels personal by the means of trusts and executory devises.

The convenient and beneficial manner in which provision could thus be made for families and children's portions induced the courts to countenance executory devises; but on the other hand, it was foreseen that an unlimited indulgence of them might introduce all the mischief which it was the policy of the statute de bonis to sanction, since there was no way of destroying entails created in this form. It was settled at a very early period of their adoption that entails by executory devise could not be barred by fine or recovery. If they consisted of real estate the devise could not be barred by fine, because the title of the devisee was independent of the immediate taker; nor could the estate of the devisee be destroyed by recovery, because the recompense, which, in this fictitious mode of proceeding, is the ground of barring the issue in tail and those in remainder and reversion, doth not extend to an executory devise. Cro. Jac, 590. If they were of personal estate, they could not, from the nature of the property, be the subject of either fine or recovery. Hence, it became necessary to limit and confine this mode of settlement, that entails so made should not last longer than the law permits where they commence by creating estates for life and estates tail with remainders over. It is therefore in analogy to the rule which prevails at law in relation to strict entails which cannot be protected from fine and recovery longer than the life of tenant for life and the coming of age of his first issue, that a principle is applied to executory devises, with regard to the time of their vesting. This must be a life or lives in being and twenty-one years after, to which are added a few months for the case of a posthumous child. Every contingency, therefore, which must happen, if at all, within that period of time, is sufficient to support a limitation over. But anexecutory devise cannot be limited on a failure of issue of the person named, whenever it happens. It is, however, to be remarked, that although a fine or recovery will not bar the entail of a chattel on account of the nature of the property, the danger of perpetuity is nevertheless avoided by the

operation of the principle which declares the vesting of an interest, which would be an estate tail, bars the issue and all subsequent limitations.

The rule, therefore, fixing the time within which an executory devise must take effect is equally clear and well settled; but from the language in which wills are sometimes penned, a difficulty has arisen in most of the cases to ascertain whether the rule is observed or transgressed. Rules of construction have therefore been resorted to, and have been employed in a great variety of cases for the purpose of effectuating the intention of the testator. A few of these which may be considered as undoubted law, I shall cite and adopt as the ground of our opinion.

1. That such a construction ought to be put upon the words of a will as, upon a fair consideration of the whole context, it is evident the testator intended they should receive, unless some rule of law is thereby violated.

2. That where personal estate is limited after a dying without issue, those words do not necessarily import a general failure of issue, although the first devise may be of an express estate tail. Nor in the case of an estate tail by implication, do they necessarily signify a dying without issue living at the death of the first devisee. If, however, the construction entirely depend on those words, the limitation in both cases is too remote; but, in one case as well as in the other, the words may be confined to a dying without issue then living, if there be anything in the will from which such an intention can be inferred.

3. The inclination of the court should be in favor of such a construction as will support the limitation over, if it can be done; and they should lay hold of any opportunity ofreferring such words to the want of issue at the time of death.

It may be inferred from the phraseology of several clauses in this will, that the testator was apprised of the rule of law which renders limitations void after an indefinite failure of issue, since he has by apt and significant terms confined the failure to the death of the first taker. This he has done in every instance where the first devise is to one son and the limitation over is to another. Upon the first, second and fourth clauses of the will the limitations over must vest, if at all, at the end of a life in being. The words are, "if my son should die without issue living at the time of his death." In every instance where the limitation over is to one person, and that person is a son, the failure of issue is most carefully tied up to the death of the first taker. In the third and fifth clauses, where sons are the first takers and the limitations over are to grandchildren, a diversity

of phraseology is introduced. The testator, however, manifestly intended to make a substantial provision for his grandchildren in the event of his sons dying without leaving issue. The supposition that...

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