Fortescue v. Waite
| Decision Date | 30 June 1841 |
| Citation | 23 N.C. 566,1 Ired. 566 |
| Court | North Carolina Supreme Court |
| Parties | HENRY C. FORTESCUE, Adm'r, . v. FENNER B. SATTERTH WAITE. |
A testator devised certain negroes to his three children, J. S. and N. and then proceeded as follows: “In case either of my said children should die without heir lawfully begotten, it is my wish that the property should be equally divided between the children then living, whether J. S. or N.” J. died first. N. then died without issue, leaving S. surviving. Held that under this limitation S., the surviving child, took the property belonging to N.
S. the survivor, had previously intermarried with the plaintiff, and after this intermarriage, and before the death of N., the plaintiff conveyed the negroes, now in controversy, being part of those in which his wife had a contingent interest, to the defendant. Held that this deed was an estoppel as to the husband, and when his wife acquired a vested interest by the death of N., such interest passed to the defendant by force of the said deed, either upon the principle that the interest, when it accrued, fed the estoppel, and thereby gave an absolute title, or that the deed operated as a release of the wife's choses in action.
If the words in a deed of sale of goods and chattels plainly evidence a sale, this is sufficient without technical words. Such a deed of sale may be made without any words of “bargain and sale” as well as with those words.
Contingent interests, such as executory divises, &c. are assignable. A possibility cannot be transferred, but by a possibility is meant, the mere expectancy of an heir apparent, or of one who is next of kin to a living man, or the prospect of having a legacy left, &c.
The case of Burnett v. Roberts, 4 Dev. 83, cited and approved.
This was an appeal from the judgment of the Superior Court of Law of Beaufort County, at the Spring Term, 1841, his Honor Judge BAILEY presiding. The case was one of trover, brought to recover the value of three negroes, Violet, Matilda and Bill. These negroes were the children of negro woman Mimy, who belonged to one William Satterthwaite, deceased. The said William Satterthwaite made and published his last will and testament, dated 17th September, 1810. The plaintiff claimed under the following clauses in the said will: “I give and bequeath to my daughter Nancy Satterthwaite, one negro woman named Mimy and Jaban, and one bed and furniture, &c. to her and her heirs forever.” The testator, after making several bequests to his other children, says: “In case of either of said children should die without heir properly begotten, it is my wish that the property should be equally divided between the children then living, whether James, Nancy or Sally.” The plaintiff died, leaving Sally, the plaintiff's intestate, James and Nancy, his children and the legatees mentioned in the said will. James died first; Nancy then died without issue, in July, 1836, leaving Sally the only survivor. And the question was, whether Sally was entitled to the negroes under the last clause, as aforesaid. The defendant contended that the limitation over was too remote, and the plaintiff could not recover. And, furthermore, he offered in evidence a bill of sale from Nancy Satterthwaite, dated 28th May, 1833, for the negroes in controversy, a copy of which is annexed, marked (B); and, also, an agreement between Henry C. Fortescue and the defendant, dated 27th January, 1834, (after the said Henry's marriage with Sally) agreeing to refer the rights of the said Henry, and the defendant to the negroes of the said Nancy, claimed by them respectively, to the award of certain arbitrators, the decision of the arbitrators in favor of the defendant as regards the negroes now in controversy, and also a bill of sale for these negroes from Henry C. Fortescue and his wife Sally, (the plaintiffs' intestate) to the defendant, dated 27th January, 1834, made in pursuance of the award. A copy of this bill of sale is hereunto appended, marked (D.) All which testimony was rejected by the Court. Nancy died intestate, and without issue in July, 1836. Sally was a feme covert, at the execution of the said deed.
His Honor Judge BAILEY was of opinion that the limitation in the will was not too remote, but that the words, then living, whether James, Nancy or Sally, tied up the contingency to the death of the first taker without issue. Under this instruction, the jury returned a verdict for the plaintiff. A new trial having been moved for and refused, and judgment having been rendered, pursuant to the verdict, the defendant appealed.
(B.)
Know all men by these presents that I Nancy Satterthwaite of the State of North-Carolina and County of Beaufort, for and in consideration of the love & affection which I have unto my nephew Fenner B. Satterthwaite of the aforesaid County and State, and the sum of one dollar to me in hand paid by the said Fenner, &c. do hereby alien, set off and confirm unto my said nephew Fenner B. Satterthwaite all my right, title, interest and claim which I have in and to the following negroes (describing among others the negroes claimed in the plaintiff's declaration,) all of which described negroes unto my said nephew Fenner B. Satterthwaite, his heirs and assigns &c. forever. (Then follows a clause of warranty against all persons, claiming by, through, or under her.) Signed, sealed, witnessed and registered according to law and dated the 28th May, 1833.
(D.)
Copy of the deed from Henry C. Fortescue and his wife to the defendant.
Know all men by these presents, that we, Henry C. Fortescue and wife Sally, of the part, and Fenner B. Satterthwaite of the other part, all of the County of Beaufort and State of North Carolina, witnesseth that we, Henry C. Fortescue and wife Sally, do by these presents, for and in consideration of one dollar to us in hand paid by Fenner B. Satterthwaite, the receipt thereof we do hereby acknowledge and ourselves fully satisfied for all our right, title and interest, which we now or may have in and to negro woman Violet and child not named, Matilda and Jim, formerly the property of Nancy Satterthwaite--and we, the aforesaid Henry C....
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...v. Wood, Willis, 211; Jones v. Doe, 3 T. R. 93. Judge Daniel, speaking of these interests and the cases cited above, says in Fortescue v. Satterthwaite, 23 N. C. 566: "In the last case the judges seem to have considered it as settled that contingent interests, such as executory devises to p......
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...§ 122 (1964). '(E)xecutory devises are not considered as mere Possibilities, but as Certain interests and Estates.' Fortescue v. Satterthwaite, 23 N.C. 566, 570 (1841). A long line of decisions by this Court establishes that contingent interests, such as contingent remainders, springing use......
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