Baker v. Pender

• Decision Date: 30 June 1858
• Citation: 50 N.C. 351,5 Jones 351
• Court: North Carolina Supreme Court
• Parties: JOSEPH H. BAKER, Adm'r of NANCY FOXHALL v. JOSEPH J. B. PENDER.

5 Jones (NC) 351

50 N.C. 351

JOSEPH H. BAKER, Adm'r of NANCY FOXHALL

v.JOSEPH J. B. PENDER.

Supreme Court of North Carolina.

June Term, 1858.

A limitation as follows: “But should my wife die without heirs of her body, then at her decease, the whole of the property to go to the use and benefit of my daughter,” was Held to be good as to the remainder; for that the restriction to the time of the wife's decease prevented the limitation over from being too remote.

A transposition of the sentences of a will is allowed by the rules of construction, when necessary to express the intention of the testator.

This was an action of DETINUE, for a certain slave called John, tried before his Honor Judge ELLIS, at the Spring Term, 1858, of Edgecombe Superior Court.

The case was submitted for the judgment of the Court upon the following

CASE AGREED.

1. John Jackson, of the said county, died in or about 1798, having made his last will, and being possessed of certain slaves, of one of which, the slave in controversy was the increase.

2. At February Term, 1799, of Edgecombe county court, his will was duly proved, the material portion of which is as follows: “I give and bequeath to my loving wife, Charlotte Jackson, all the real and personal property I may die possessed of, after the payment of my just and lawful debts, in the following manner to wit: that thereout of, my daughter, Nancy J. Jackson, be boarded, clothed and educated in as genteel a manner as the nature of the case will admit of; that neither real or personal property be sold, given, or otherwise disposed of, more than is thought, by my executors, is necessary for the genteel support of my wife and child; that when my said daughter, Nancy J. Jackson, marries or arrives at years of maturity, that then my real property, as well in this county as in Cumberland county, in the State of Tennessee, be at the disposal of her and her heirs forever, and that at such time as aforementioned, my loving wife gives to my said daughter Nancy, one good bed and furniture, one horse to be worth one hundred dollars, a good woman's saddle and bridle, and one hundred pound Virginia currency, either in hand or a bond for that amount payable in twelve months after my daughter should arrive of age; the balance of the property to be for the sole use and benefit of my wife, to her and her heirs lawfully begotten of her body for ever; but should my wife die without heirs of her body, then, at her decease, the whole of the property to go to the use and benefit of my said daughter Nancy and her heirs forever, and until that matter is fully ascertained, that none of the negroes be sold, or otherwise disposed of, by gift, &c.; and should my said daughter Nancy die previous to the death of my said wife, and without marrying or having heirs of her body, that then the land and property which I have above bequeathed my said daughter, to revert back. It is further my will and desire that, in case my said wife, Charlotte, should die without issue, and preceding the death of my daughter, and then that my daughter should die without marrying and issue of her body, that then the property shall be equally divided between Figures, Sally and Nancy Phillips, the brothers and sisters of my wife.”-- Charlotte Jackson was appointed, and alone qualified as, executrix, the others having renounced.

3. Charlotte, the widow, married a second husband, John D. Ward, who died in or about 1823. By him she had issue, Joseph J. E. Ward, who died intestate in 1831 or '32, and said Charlotte died in 1855.

4. Nancy, referred to in the above will, was the testator's daughter by a former marriage; she married William Foxhall, and died in, or about, 1820. She had issue by her said husband, William, one child, Mary Ann Foxhall, who survived the said Nancy about ten years. The plaintiff, Joseph H. Baker, at February Term, 1857, of Edgecombe county court, administered on the estate of the said Nancy.

6. The slaves aforesaid with their increase, after the death of John J. Jackson, remained in the possession of his widow, Charlotte, until her death in 1855; after which, they went into the passession of the defendant, and were so possessed by him when the plaintiff demanded them, and he refused to give them up. Therefore, this suit was brought.

7. It is agreed that if the Court should be of opinion that the plaintiff is entitled to the slave in question, then judgment shall be entered for the value thereof at twelve hundred dollars.

Upon consideration of the case, his Honor being of opinion with the defendant, gave judgment accordingly; from which the plaintiff appealed.

McRae, Bryan and E. G. Haywood, for the plaintiff .

Badger, Rodman and Moore, for the defendant .

PEARSON, J.

Without entering into the question whether the word “then” is an adverb of ““time,” or a mere “relative” adverb, about which much is to be met with in the books, we are satisfied that the words “at her decease” fix the happening of that event as the time at which the limitation over must take effect, if it...