Braswell v. Morehead

• Decision Date: 31 December 1852
• Citation: 57 Am.Dec. 586,45 N.C. 26
• Court: North Carolina Supreme Court
• Parties: ELMIRA BRASWELL, BY GUARDIAN, v. JAMES T. MOREHEAD, EXECUTOR, AND OTHERS.

45 N.C. 26

57 Am.Dec. 586

ELMIRA BRASWELL, BY GUARDIAN,

v.JAMES T. MOREHEAD, EXECUTOR, AND OTHERS.

Supreme Court of North Carolina.

December Term, 1852.

Where a testator by his will bequeathed certain slaves to his infant grandchild, and if she die before arrival at twenty-one years of age, then over:-- Held, that such particular tenant, by her guardian, residing in another State, has no right to remove the property beyond the limits of this State, against the wishes of the remaindermen.

Owners of executory bequests and other contingent interests, stand in a position, in this respect, similar to vested remaindermen, and have a similar right to the protective power of the Court.

The particular tenant, in such case, is entitled to the hires and profits of the property beqeathed to her, until the event shall happen on which they are limited over.

( Wilcox v. Wilcox, 1 Ire. Eq., 36, and Brown v. Wilson, Ib. 558, cited and approved.)

Cause removed from the Court of Equity for

Guilford County, at Fall Term, 1852.

James Cole died sometime about the year 1848, leaving a will in which he bequeathed as follows:--

“I give and bequeath to my granddaughter, Elmira Braswell, my negroes Patty, Harriett, Fanny, Amy, Sarah and Miles, and their increase. Also a bond I hold on B. W. Braswell for $860, with interest thereon, two feather beds, and furniture. At my death, my desire is that my executors take possession, hire out the negroes, and apply the proceeds to the use of my granddaughter, Elmira Braswell. I also give to my granddaughter, Elmira, at the age of twenty-one years, my tract of land I bought of Henry Tatum, with the exception of the home plantation, which I grant him and his wife during their natural life the use of: and if my granddaughter, Elmira, should die before she arrives at the age of twenty-one years, then the property bequeathed to her is to be equally divided between the heirs of my two daughters, &c.”

Before the death of the testator, Blake W. Braswell removed to Mississippi, where the plaintiff, an infant, and her guardian now reside; and this bill was filed against James T. Morehead, surviving executor of Cole, and the legatees in remainder, praying the opinion and advice of the Court upon the above clause, and asking for a decree authorizing the guardian to remove the negroes and other personal property bequeathed to his ward to the State of Mississippi. And the bill also prays that the executors be decreed to account for the hires and profits of the slaves and other personal estate given to the plaintiff.

The defendants, in their answers, admit the facts set forth in the bill, but insist that the removal of the slaves and other property beyond the jurisdiction of the Court, would be prejudicial to the rights of those in...