Burnett v. Roberts

• Decision Date: 31 December 1833
• Citation: 15 N.C. 81
• Court: North Carolina Supreme Court
• Parties: JOSHUA BURNETT v. JOHN ROBERTS.

15 N.C. 81

JOSHUA BURNETT

v.JOHN ROBERTS.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1833.

A limitation over, of slaves, after a bequest for life, upon the executor's assent to the legacy, becomes a vested legal estate, which may be assigned, and which can not be destroyed by any act of the legatee for life.

This was an action of TROVER for the value of several slaves, and was tried in Lincoln, at Fall Term, 1831, before his Honor, Judge Daniel.

Walter Pollard by his will, made in 1768, bequeathed three negroes to Morris Roberts and his wife during their lives, and after their death, to Joshua, Martin, Mary, Susan and Jane Roberts, and the defendant, equally to be divided between them. The plaintiff intermarried with Mary, one of the legatees in remainder, and in 1805, by a deed executed by himself and his wife, and reciting a consideration paid, of one hundred and fifty dollars, the payment of which was proved on the trial, conveyed their share of the slaves to William Magness, who died intestate in 1816, and the defendant administered. In 1828, Morris Roberts, the survivor of the legatee for life, died, and in 1819, the plaintiff and defendant with the other persons named in the bequest over, by deed, reciting that questions had arisen about the division, and about certain allowances in respect of the slaves, appointed certain persons as arbitrators to settle those questions, and to allot and divide the slaves, which had then increased to a large number. This deed was executed by the defendant for himself, and also for the plaintiff, who resided in Indiana, under a power of attorney, constituting him the plaintiff's agent. The negroes were divided by the persons appointed, at which time the defendant was present, and stated that the plaintiff and wife had given a bill of sale for their interest in the negroes many years before, that he knew of its execution at the time, but it was lost, and he could neither find the bill of sale itself, nor the entry of it on the register's book. The slaves allotted to the plaintiffs, were delivered to the defendant and received by him as the plaintiff's agent, and were byhim, shortly after, hired out; he declaring that he did not well know whether they belonged to the plaintiff, or his intestate Magness, as neither the bill of sale or the registration of it could be found. Some time afterwards, it was discovered upon a more particular search of the register's book, that the bill of sale had been registered, and therefore, the defendant claimed the slaves as administrator of Magness, and refused to deliver them up to the plaintiff. On the trial, it was

contended that the bill of sale did not pass anything to Magness, because the interest in the slaves was at its execution, a mere possibility which the husband could not assign, and also that the defendant having received possession as the agent of the plaintiffs, was estopped to deny his title. On both these questions, the presiding Judge was of opinion against the plaintiff, and directed a verdict for the defendant, and the plaintiff appealed.

RUFFIN, C. J. The nature of the interests passed by the bequest of a chattel to one for life, with a limitation over to another, has been very fully discussed at the bar, in this case. The Court, however, does not feel called on to enter into the ancient learning upon the subject, because we consider the question entirely settled by repeated adjudications through a long series of years in this State, and if we should draw the conclusions from the law, for which the counsel for the plaintiff has contended, we should still be compelled to obey his own decisions.

There can be no doubt that it has long been received here as law, that such a bequest of slaves is good by way of executory devise, to vest, upon the assent of the executor, the legal estate in the taker for life, with a legal remainder over. Many actions have been brought at law by the tenant for life, and also after his death by the remainder man, and during the life of the tenant for life, many bills have been filed by the remainder man upon his title as a legal one, for a ne exeat.

The ulterior limitation has never been considered as creating a mere equity, which would be defeated by a sale without notice; but as a vested legal interest which could not be destroyed by any act of the first taker.

In Dunwooddie v. Carrington, 49 N. C., 355, it is laid down that the assent of the executor to the legacy for life, is an assent to that in remainder by way of executory devise. In Ingram v. Terry, 9 N. C., 122, the same doctrine is stated; and a bill by one taking an interest in the nature of a remainder, against the first taker as his trustee, was dismissed upon the ground that the title was a legal one, and that the remedy was at law. In Alston v. Foster, 16 N. C., 337, a bill was brought by remainder men, upon their title as a legal one by the assent of the executor, and relief granted upon that ground. And in Jones v. Zollicoffer, 4 N. C., 645, the same character was given to the interest of a remainder man. That was as strong a case as it

could be. The plaintiffs filed the bill for the recovery of the issue of...