Newkirk v. Hawes

• Court: North Carolina Supreme Court
• Writing for the Court: PEARSON
• Citation: Newkirk v. Hawes, 5 Jones 265, 58 N.C. 265 (N.C. 1859)
• Decision Date: 31 December 1859
• Parties: BRYAN NEWKIRK AND OTHERS v. ENOCH HAWES.

5 Jones Eq. 265

58 N.C. 265

BRYAN NEWKIRK AND OTHERS

v.ENOCH HAWES.

Supreme Court of North Carolina.

December Term, 1859.

A testator bequeathed slaves to A “during her life, and at her decease, to the lawful heirs of her body, if any such there be, and if none, to return to the lawful heirs of my body,” it was Held that, on the death of A, without having had a child, the limitation over was valid.

Held further, that the children of the testator living at his death, and the personal representatives of such as died after him, were the proper parties to sue.

CAUSE removed from the Court of Equity of New Hanover county.

Abraham Newkirk, by his will, executed in 1823, bequeathed as follows, that is to say, “I also lend unto my daughter, Penny Newkirk, during her natural life, the following negroes, viz: Dolly and Dinah, and Dinah's children, viz., John, Bill, Cæsar, Guilford, Peyton and Sam, also one bed and furniture, and at her decease, to the lawful heirs of her body, if any such there be, and if none, to return to the lawful heirs of my body, and to be equally divided amongst them.”

The testator died in the same year, 1823, and his will was duly admitted to probate.

Penny Newkirk, the legatee above named, intermarried with the defendant, Enoch Hawes, some time in the year 1824, and the executor delivered to him all the slaves mentioned in the will. She died in the year 1859, without leaving any child or children, or the descendants of such, and without ever having had a child born alive. The bill is filed by the surviving children of Abraham Newkirk, who were alive at the death of the testator, and the representatives of such others as were then alive, but are now dead, (excepting Penny, the legatee,) to recover the said slaves, and their increase, amounting, in number, to about twenty-three.

The defendant demurred to the bill generally, for the want of equity. There was a joinder in demurrer, and a removal of the cause to this Court.

W. A. Wright, for the plaintiffs .

Person, Strange and Baker, for the defendant .

PEARSON, C. J.

Is the limitation over to the heirs of the body of the testator valid, or is it too remote? It is not necessary, in order to decide this question, to say whether Penny Newkirk took an estate, for life, with a limitation to the heirs of her body as purchasers at her decease, or whether she took the entire estate under the rule in Shelly's case defeasible, at her decease, to make room for the limitation over; for in either view, as she never had a child, the property will pass under the limitation over, provided it be not too remote.

We think the limitation over is valid, because it is so limited, that if it takes effect at all, it must take effect at her death. The ownership of the property must, at the time, be absolutely determined one way or the other, consequently, it was not “tied up” longer than the law allows. The very learned and able argument, filed by Mr. Wright, relieves the Court from the necessity of elaborating the subject. We adopt his reasoning, to show that the time is fixed, and the limitation over depends upon her having heirs of...