Thompson v. Newlin
| Decision Date | 31 December 1844 |
| Citation | 38 N.C. 338,42 Am.Dec. 169,3 Ired.Eq. 338 |
| Court | North Carolina Supreme Court |
| Parties | JOSIAH THOMPSON et al. v. JOHN NEWLIN, EX'R., . |
A testatrix bequeathed certain slaves to A. without mentioning any trust to be attached to the bequest. The next of kin of the testatrix filed a bill against A. alleging that the slaves were bequeathed to A. on the unlawful trust that he should permit them to reside in this State, and enjoy their actual freedom, while he was to be only a nominal master; and the bill stated some circumstances to justify this belief, and particularly, that A. was a member of the Society of Friends, and could not conscientiously hold slaves. The defendant demurred to the bill.
Held, that the demurrer should be overruled, and the defendant be decreed to answer, whether the gift was an absolute one to him, or whether it was in trust, and, if so, what was the object of the trust.
If the trust was unlawful, as alleged in the bill, then A. who was also the ex-executor of the will, was a trustee for the next of kin, and must disclose the facts, so that the court may give them their proper remedy. If it was on a lawful trust, the court has a right to know it, that the execution of the trust may be decreed.
An express agreement between the testatrix and the donee in the will, is not required to establish a trust on his part. An understanding, or belief and expectation, by the testatrix, that the donee would not hold these negroes as slaves beneficially, and that he either assented thereto, or by his silence induced her, and intended to induce her to think, that he meant to comply with her view, are sufficient to constitute him a trustee.
A demurrer, unlike a plea, must be overruled in toto, unless it be good in its full extent. If it cover too much, as if it be to the whole bill, when the plaintiff is entitled to discovery or relief upon some part, it must be overruled; for it cannot be held bad in part, and good in part.
The cases of Haywood v. Craven, 2 Car. L. Rep. 557, Huckaby v. Jones, 2 Hawks. 120, Stephens v. Ely, 1 Dev. Eq. 493, Sorry v. Bright, 1 Dev. & Bat. 113, Cameron v. Commissioners of Raleigh, 1 Ired. Eq. 436, and Cook v. Redmond, 2 Dev. Eq. 623, cited and approved.
This was an appeal from an interlocutory order of the court of equity of Orange County, at the Fall Term, 1844, his Honor Judge PEARSON presiding, by which the demurrer filed by the defendant to the plaintiffs' bill, was overruled, and he ordered to answer.
The following is the case presented by the pleadings:
The bill was filed by the next of kin of Sarah Freeman, deceased, late the wife of Richard Freeman; and states, that, by her marriage settlement, she was entitled, to her separate use, to a considerable number of slaves and other personal estate, consisting of money and debts, and other things to a considerable value: that she wished and intended, that, after her death, her slaves should not serve any person in a state of servitude, but should be freed or held by some person in a state of qualified slavery, and have all the other parts of her personal estate. The bill states, that the defendant, Newlin, is a member of the religious society, called Quakers, and that all the members of that society are opposed, and that the defendant is opposed, upon a religious principle, to slavery, and that the defendant will not hold slaves as property and for his own use; and that he had taken an active agency in procuring the manumission of slaves and had taken conveyances of slaves absolute, apparently, but had suffered such slaves to enjoy the privileges of freemen. The bill then states, that the testatrix well knew the said Newlin and the religious principles above mentioned of himself and the other members of his religious society, and that, in fraud of the laws of the State and the public policy, she made her will, and therein bequeathed to the said Newlin all her slaves and other estate, but with the intention and understanding, that the said Newlin should hold the negroes, not for himself, but for their own benefit and advantage, and for the purpose of their enjoying a qualified freedom, and that he should hold the residue of the estate in trust for the said negroes. The bill also states, that the plaintiffs contested the probate of the will, and that, upon the trial of the issue, devisavit vel non, the present defendant proved, as a part of his case in support of the instrument, that the testatrix had declared the intentions above mentionod as to her slaves after her death, and that she knew that he was a quaker, and designed to bequeath the said slaves to a member of that society, who would not hold them as slaves, and therefore gave them to him.
The bill then charges, that the bequests of the will were made upon a trust for the benefit of the slaves themselves, and that they might be kept here in a state of qualified slavery, and should have the benefit of the other parts of the personal estate, and that such a purpose was unlawful and contrary to the policy of the State, and that a trust of the slaves and other personal estate results to the plaintiffs, as next of kin. The bill, therefore, prays a discovery, an account and relief.
The defendants put in a general demurrer to the discovery and relief for want of equity.
Upon the argument of the demurrer, his Honor held, that Freeman, the husband, was a necessary party; and, also, that the allegation, and an interrogatory founded thereon, “that the defendant had taken an active agency in procuring the manumission of slaves, and had taken conveyances of slaves, absolute, apparently, but that such slaves were to enjoy the privileges of freemen,” was impertinent, and that the defendant was not bound to answer thereto, because it would subject him to prosecution and penalties. But the court allowed the plaintiff to amend the bill by making Freeman a party, and by striking out the allegation and interrogatory above mentioned, upon the payment of all the costs up to that time. And then the court overruled the demurrer, but allowed the defendant an appeal to this court.
Badger for the plaintiffs .
J. H. Bryan for the defendant .
The court is of opinion, that the demurrer was properly overruled. The bill charges a bequest upon a secret trust for the benefit of the slaves; and the defendant must answer as to the truth of the charge. If the trust was expressed upon the face of the will, being against the public policy, the court would hold that it was void, and that a trust resulted to the next of kin. Haywood v. Craven, 2 Car. L. Rep. 557. The same consequence follows, if it can be collected or implied from any incidental expressions in the will or deed. Huckaby v. Jones, 2 Hawks. 120. Stephens v. Ely, 1 Dev. Eq. 493. Lorcy v. Bright, 1 Dev. & Bat. 113. The doctrine of the court is well settled to be, that slaves can only be held as property, and deeds and wills, having for their object their emancipation, or a qualified state of slavery, are against public policy, and a trust results. Since the act of 1830, Rev. St. ch. 101, it is not unlawful to bequeath or convey slaves for the purpose of being removed out of the State in a convenient time, and emancipated there, and kept away from this State. Cameron v. Commissioners of Raleigh, 1 Ired. Eq. 436. But it cannot be supposed upon this bill, that such was the purpose or nature of the trust here; for there is no allusion to the removal of the slaves to be emancipated, but, on the contrary, it is charged that they were to be held by the defendant, nominally as their's, to evade the law, but really for the benefit of the slaves themselves; which imports, that the purpose was not to send them abroad for emancipation there, but, rather, that they should remain in this State. But, if, in truth, the trust was to send them out of the State, and the defendant intends to do so, and will submit to do so under the direction of the court, and will enter into the obligations, which the law requires, that they shall not return, then let him thus answer, and that will terminate the plaintiff's claim. But upon the supposition, that the trust was, that the slaves should be kept here, in which case the defendant could not carry them away without a breach of trust; or that it was, that they...
To continue reading
Request your trial
-
Rush v. Mcpherson
...reproach to the administration of justice"—citing Johnson v. Hauser, 88 N. C. 388; Shields v. Whitaker. 82 N. C. 516; Thompson v. Newlin, 38 N. C. 338, 42 Am. Dec. 169; Cook v. Redman, 37 N. C. at page 623; Cobb v. Edwards, 117 N. C. 244, 23 S. E. 241; Williams v. Avery, 131 N. C. 188, 42. ......
-
Rush v. McPherson
...a reproach to the administration of justice"--citing Johnson v. Hauser, 88 N.C. 388; Shields v. Whitaker, 82 N.C. 516; Thompson v. Newlin, 38 N.C. 338, 42 Am. Dec. 169; Cook v. Redman, 37 N.C. at page 623; Cobb Edwards, 117 N.C. 244, 23 S.E. 241; Williams v. Avery, 131 N.C. 188, 42 S.E. 582......
-
City of St. Louis v. McAllister
...W. N. (1875), 134; Huchaby v. Jones, 2 Hawks, 120; Stevens v. Ely, 1 Dev. Eq. 493; Sorrey v. Bright, 1 Dev. & B. Eq. 113; Thompson v. Newlin, 3 Ired. Eq. 338; Lemmond Peoples, 6 Ired. Eq. 137. (3) The law of private trusts is that where there is a surplus, residue or balance, over and above......
-
Cobb v. Edwards
...513; Cohn v. Chapman, Phil. Eq. 94; Hargrove v. King, 5 Ired. Eq. 430; Jones v. Emory, 115 N. C. 158, 20 S. E. 206; Thompson v. Newlin, 3 Ired. Eq. 338. But where the grantor, by a mere declaration, ingrafts upon his own deed a trust, the declaration must be neither prior nor subsequent to,......