Spruill v. Moore

• Citation: 49 Am.Dec. 428,5 Ired.Eq. 284,40 N.C. 284
• Court: North Carolina Supreme Court
• Decision Date: 31 December 1848
• Parties: SHEPHERD R. SPRUILL v. JESSE MOORE et al.

5 Ired.Eq. 284

40 N.C. 284

49 Am.Dec. 428

SHEPHERD R. SPRUILL

v.JESSE MOORE et al.

Supreme Court of North Carolina.

December Term, 1848.

A testator bequeathes to his four daughters Sarah, Elizabeth, Marina and Agnes certain negro slaves, and directs that no division shall take place until his eldest daughter arrives at the age of twenty one, when she was to receive her share and so on as to each of the other daughters upon her arriving at the same age. The will also directs “that if either of my said daughters should die without lawful issue, then and in that case the survivors or survivor of my said daughters shall have all the said negroes and their increase forever.” Marina died first under age and without issue; then Sarah died under age but leaving a child and her husband surviving; then Agnes died under age and without issue; lastly, Elizabeth after having intermarried with S., died under age and without issue.

Held first, that this was a vested legacy, subject to go to the survivors or survivor upon the death of any of the daughters under age and without issue.

Held secondly, that on the death of Sarah, her share having become absolute by her having issue, vested in her husband who had the slaves in possession, and that her share also included one third of the share bequeathed to Marina.

Held, thirdly, that the share of Agnes, on her death, survived exclusively to Elizabeth and that the child of Sarah was not entitled to any part of it.

Held, fourthly, that the share, to which Agnes became entitled on the death of Marina, of the legacy bequeathed to her, also went to the last survivor Elizabeth.

The general rule is, that if legacies be given to three or more persons, as tenants in common, in distinct shares, with a limitation over to the survivors, upon the death of any of them under age or without leaving issue, and two of them die, then only the original share of the one dying last, and not the survived share, goes over. But there is a distinct exception to the rule, and that is, where a fund is left as an aggregate fund, and made divisible among many legatees, with the benefit of survivorship, in which case the whole fund may go to the last survivor. The word “all” applied to the fund to go over, makes it an aggregate fund.

The cases of Zollicoffer v. Zollicoffer, 4 Dev. & Bat. 438, Threadgill v. Ingram, 1 Ire. 577, Skinner v. Lamb, 3 Ire. 155, and McKay v. Hendon, 3 Murp. 21, cited and approved.

Cause removed by consent from the Court of Equity of Martin county, at the Fall Term 1848.

David Latham made his will October 28th 1833, and died shortly afterwards. By it he bequeathed to his wife, Charity, certain slaves for life; and then made the following dispositions. “I give to my four daughters, Sarah, Elizabeth. Marina, and Agnes the following negroes, viz, Wilson, Dunn, Sabra, Sandy, Charlotte, and Mary; and also, after the death of my wife, the negroes, Jesse, Sharper, Quash, Esther, Amy, Jude, Isaac, Nancy, and Jude Sr. and all the increase of the said negroes. It is my will that no division of the said negroes between my daughters take place, until the eldest daughter then living arrives to the age of 21; and at that age to take her proportional share of the said negroes and increase, if she thinks proper, and so on until the youngest arrive at twenty one. Also it is my will, that if either of my said daughters should die without lawful issue, then and in that case, the survivors or survivor of my said daughters shall have all the said negroes and their increase forever.” The executors assented to the legacies, and the widow, she having been appointed the guardian of her daughters, received all the said slaves. In March 1838 Marina died under age and without issue. In July 1841 Sarah died under age, but left an infant daughter, Sarah E. Moore, by her husband Jesse Moore, who also survived her. Agnes died in March 1844 under age and without issue. Charity, the widow, died intestate in 1846. The remaining daughter, Elizabeth, married the plaintiff, Spruill, and died in March, 1848, under age and without issue. After the intermarriage of Jesse Moore with Sarah, he was in 1840 appointed guardian of Agnes and Elizabeth, and then received all the negroes bequeathed immediately to the daughters, and at the death of Mrs. Latham those, that had been given to her for life and over to the daughters.

By other parts of his will the testator provides for his only sons, David and Simon, by devises and bequests to them in severalty of land and shares, with cross remainders between them. David died intestate and his brother Simon is his administrator. Jesse Moore administered upon the estates of his late wife and of her mother, Mrs. Latham. The plaintiff administered upon the estates of his late wife and her two sisters, Marina and Agnes. He then filed this bill against Jesse Moore, Simon Latham, and the infant Sarah S. Moore, claiming that all the negroes and their increase belong to him and Jesse Moore, in the proportion of two thirds to the plaintiff and one third to the other, and praying for a division accordingly. It prays also for an account of the profits of the slaves and a settlement of the guardianships of the plaintiffs intestates; and likewise that the defendants should set forth their respective claims to the slaves and other parts of the fund.

Biggs, for the plaintiff .

Rodman, for the defendant .

RUFFIN, C. J.

The only questions, at present presented to the Court, are in respect to the rights in the slaves given to the daughters and in the profits of them at different periods.

The defendants set up claim, that in the event, which has happened, of the deaths of both Agnes and...