Ingram v. Terry

• Decision Date: 30 June 1822
• Citation: 9 N.C. 122
• Court: North Carolina Supreme Court
• Parties: INGRAM v. TERRY ET AL.—From Richmond.

9 N.C. 122

INGRAM

v.TERRY ET AL.—From Richmond.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1822

1. When a bequest of a negro woman is made to A., and of her issue, if she should ever have any, to B., the assent of the executor to the legacy to A. is an assent to the legacy to B. also.

2. If a bill be brought by B. against A. to compel the delivery of such issue to B., the bill will be dismissed.

3. In the case put, A. and B. constitute but one owner and the executor is not bound to assent to the legacy unless he gets bond for the value of the whole interest.

THE bill set forth that the complainants, Drusilla Ingram and Hannah Ingram, were the grandchildren of one William Terry, who, on 20 March, 1805, made and published his last will and testament, containing, among other clauses, the following: "I give and bequeath to my son, Matthew Terry, two negroes, viz., Nell and Boston, to him and his heirs forever; and should the said negro wench Nell have any children, it is my desire that they be given to Benjamin Ingram's two youngest daughters, Hannah and Drusilla." That the executors to said will assented to the legacy of the negro woman Nell to Matthew Terry, who accordingly took her into his possession; that after the executors had assented as above stated, Nell had issue, a male child, and that these complainants had demanded of one of the defendants, Matthew Terry, the possession of such child, and had also applied to the executors for their assent to the legacy of Nell's children to these complainants; that such assent had been refused, and that Matthew Terry refused to deliver the possession of Nell's child to the complainants. To this bill there was a demurrer for want of equity in the court below, which was sustained and the bill dismissed. Complainants appealed.

HENDERSON, J. I cannot but view this as a bill brought upon a mere legal title. When the executors assented to the legacy of the mother, they thereby assented to the bequest of the issue, and they lost all control over the property as executors. The claim lost its

legatory character, and even viewing this as a residuary interest, which I think it very much resembles as far as respects the present question, the result will be the same; for I cannot think that the old law upon the subject is at all altered by the acts of our Assembly, requiring legatees to give refunding bonds. Those who argue in favor of the alteration contend that a legatee for life or other particular interest can compel an...