Bank of State v. Forney

• Decision Date: 30 June 1842
• Citation: 37 N.C. 181,2 Ired.Eq. 181
• Court: North Carolina Supreme Court
• Parties: BANK OF THE STATE et al v. THOMAS J. FORNEY et al.

2 Ired.Eq. 181

37 N.C. 181

BANK OF THE STATE et al

v.THOMAS J. FORNEY et al.

Supreme Court of North Carolina.

June Term, 1842.

A devise to executors to hold certain property and its proceeds, until the testator's six sons should become free from debt, and when that event occurred, to make a division among them, or set off to each respectively his proportion of the property as he became free from debt, does not convey such an interest to the sons as enables them to dispose of the property, or such as to subject it to the claims of creditors, before the event, on the occurrence of which they are to take possession of the property, shall have first happened.

This bill was filed at the Fall Term, 1841, of Burke Court of Equity in the name of the Bank of the State of North Carolina, and Isaac T. Avery agent of the Bank against the defendants. To this bill answers were filed and replications thereto entered. At the Spring Term, 1842, the cause was set for hearing upon the bill and answers, and ordered to be transmitted to the Supreme Court.

The questions submitted by the pleadings are fully set forth in the opinion delivered in this court.

Badger, J. H. Bryan and D. F. Caldwell for the plaintiffs .

W. J. Alexander and J. G. Bynum for the defendants .

RUFFIN, C. J.

Jacob Forney died in the latter part of 1840, having previously made his will, bearing date the 11th day of January of that year. He therein first gave to his wife sundry slaves and other things absolutely; and then one third part of his lands and sundry other slaves for her life. The will then proceeds: “My will is, that all the balance of my property shall be divided equally amongst my ten children and their heirs; the amount they have hitherto severally received to be estimated as a part of their shares.” The testator then specifies the value of the advancement to each child; for which he or she should account in the division. Then follow the clauses following: “The balance of my property, to wit, the tract of land on which I live, containing 3,000 acres, more or less, situate &c.; and the following slaves, Cinda &c. and their increase, and all other property of mine, I give and bequeath to my executors hereinafter named, the survivors or survivor of them and the heirs of the survivor, in trust for the following purposes: At my death my executors shall take possession of the said property, and divide it into ten equal shares, including the amounts above set forth as received by the several children, and making those amounts parts of their shares: After having thus divided the property, real and personal, and equalized the shares, my executors, or the survivor &c., shall deliver to my daughter F. E. Tate and my son Daniel their several shares, to hold to them and their heirs forever. The remaining eight shares to remain in the hands of my executors &c., and to be managed to the best advantage, so as to accumulate as fast as possible. And whenever my daughters, Mary and Catherine shall marry or come of age, a new division must be made, and the shares of my said daughters, increased by the profits, if any, in their just proportion, shall be assigned to them and their heirs: And, inasmuch as my sons, Thomas, Albert, Marcus, Isaac, Peter and James, are deeply involved in debt, and I have good reason to believe that, if the property bequeathed to them were to vest in them at the time of my death, it would be sacrificed at public sale without releasing them from their difficulties; and as my special desire is, that they should be personally benefitted by what property I may bequeath to them, I will and desire that the property remain vested in my executors, the survivor &c., until they shall be released from their difficulties and free from debt; and when any one of them shall be free from debt, he shall apply to my executors, the survivor &c., who shall proceed to divide the property as before directed, and allot to each one, so free from debt, his share, including the amount advanced to him as before stated; which shall enure to him and his heirs forever: And thus in the same way shall every one receive his share, as he gets out of debt and applies for it, until all receive their shares. But if any one or more shall not get out of debt during his life, then his share to be allotted to his heirs living at his death. The property willed to my wife, I desire to be disposed of in the same manner: the shares of those who can take, being allotted to them forthwith, and the shares of those involved in debt to be vested in my executors, the survivor &c., upon the same trusts and conditions with the other property vested in them.” The testator then appointed several persons his executors. In 1837, the two sons, Thomas and Albert, obtained a loan of $6,000, from the agency of...