Duncan v. Adm'r of Parish Self

• Decision Date: 31 July 1810
• Parties: JAMES DUNCAN AND WIFE v. THE ADMINISTRATOR OF PARISH SELF, DECEASED.
• Court: North Carolina Supreme Court

5 N.C. 466

JAMES DUNCAN AND WIFE

v.THE ADMINISTRATOR OF PARISH SELF, DECEASED.

SUPREME COURT OF NORTH CAROLINA

JULY TERM, 1810.

From Chatham.

A gift of a chattel to a person, with a reservation to the donor of a life estate therein, is good, and vests a property in the donee in the event of his surviving the donor.

Parish Self made a gift by parol of a negro girl slave to his daughter Elizabeth, reserving to himself the said negro during his life. He kept the said negro in his possession until his death, and his daughter survived him. She having intermarried with James Duncan, this action of detinue was brought by them against the administrators of the estate of Parish Self, to recover the said negro girl. The defendants insisted that no title vested in Elizabeth, the daughter, by the gift; that the reservation of the property to the donor during his life was in fact a reservation of the entire interest in the negro, and nothing was left for the daughter, inasmuch as the law will not allow a remainder to be created in a chattel after a life estate, except it be done by executory devise or by deed of trust.

The case was sent to this Court upon the question, Whether the gift vested such an interest in Elizabeth, the daughter, as enables her husband and herself to recover the negro.

BY THE COURT. We are of opinion that the daughter, Elizabeth, having survived her father, the donor, the property in the negro girl vested absolutely in her at his death, and that the plaintiffs are entitled to judgment.*

Cited: Sutton v. Hollowell, 13 N. C., 186.

*The decision in this case has been thought to militate against the rule of the common law which forbids the creation of future interests in a chattel after a life estate therein, except by executory devise, or by way of trust. It is to be regretted that the Court did not assign at length the reasons upon which their decision was founded; but it will be seen from a consideration of the principles upon which it is probable their decision was made, that it does in nowise impugn the rule of the common law. Tims v. Potter, 1 N. C., 12; 2 N. C., 234, is the leading case in our courts upon this subject. Glover gave a negro girl to his daughter, reserving to himself a life estate in the said negro. The daughter survived the father, and after his death brought an action of detinue to recover the negro and her increase. The principal question upon the trial was, Whether the plaintiff was entitled to the children of the negro girl, born during the life of Glover, the donor. The validity of the gift to the daughter was not questioned. Various other cases have occurred since that time, similar to the one of Tims v. Potter, and the courts have considered the gift as vesting an estate in the donee; and the courts have probably proceeded upon one or the other of the following grounds: 1. That where one person gives a chattel to another, reserving therein a life estate, the law deems the gift a present one, in case the donee survive the donor, and to take effect in possession in that event; but that the interest of the donee during the life of the donor is a mere possibility, which is not transmissible to the representatives of the donee; and that if the donor survive the donee, the interest in the chattel remains entire with him, and goes to his representatives. And this possibility differs from a contingency; the first having no actual existence till a certain event happens, the second having an actual existence, which may or may not take effect. Upon this principle, if Parish Self had survived his daughter, the negro girl would have belonged to him in absolute property, as before the gift, and would have gone to his administrators after his death, his daughter having nothing during his life but a mere possibility; but in the event of her surviving her father, the gift...