Sutton v. Hollowell, 13 N.C. 185, 2 Dev. 185 (1829)

June 1829 · Supreme Court of North Carolina

13 N.C. 185, 2 Dev. 185

June, 1829.

Benj. Sutton ex’r of Wm. R. Sutton v. Henry Hollowell.

From Perquimons,.

A slave was given by deed to A, “ saving and reserving the use of said slave during my (the donor’s) natural life, and the natural life of my (the donor’s) beloved wife.” Held that the limitation over after the life estate, was too remote, and therefore void at common law.

The cases of Black v. Beattie, (2 Murph. 240) — Graham v. Graham, (2 Bhavks 322) and Fósate v. Foscue, (3 Ho. 538,) approved by Him, Judge.

DetiNüe for several slaves, the issue of the negro woman Odia, mentioned in the bill of sale hereinafter mentioned.

On the trial a special verdict was found, setting forth the following facts, viz. that Thomas Baker being the owner of tiie slave Celia, on the 2d of October, 1802, executed the following bill of sale :

“ Know all men by these presents, that I T. B. in consideration of <l the affection I have for my daughter Elizabeth Baker, together with “ the sum of five shillings, &c. have and do give and sell my said daugh- “ ter Elizabeth, one negro girl slave named Celia, (saving and reserv- “ ing the use of said slave during my natural life, and the natural life “ of my beloved wife.) To have and to hold said negro girl slave to “ my said daughter Elizabeth, her heirs and assigns forever. In wit- “ ness, &c.”

Elizabeth Baker the donee, afterwards married the Plaintiff’s testator William B. Sultan, After the death of Thomas Baker, his wife put the slave into the possession of the Plaintiff’s testator, saying that she would belong to him at her death -, but she did not relinquish any right to the slave which she had for her life, and the Plaintiff’s testator held the slave only under the authority of the wife of Baker, Sutton, the husband of Elizabeth, the donee, died leaving his wife and the wife of the donor surviving him. After his death the widow intermarried with the Defendant,

Upon these facts, his honor Judge Strange, thinking that the case came within the principle of the case of Vass & wife v. Hicks, (3 Mitrph. 493) and not within ^ia{. 0f Graham, v. Graham, (2 Hawks, 322,) rendered judgment for the Plaintiff, from which the Defendant appealed.

The case was submitted without argument, by Dcvc-reux, for the Defendant, and by Kinney, for the Plaintiff.

Hall, Judge.

The cases on this subject are not altogether reconcileable. Parol gifts by delivery, reserving life estates, are contradictory and inconsistent in the nature of tilings. Property cannot be delivered, and retained at the same time. If there is a delivery, there can be no reservation of a life estate. Of this kind were the cases of Duncan & wife v. Self, (1 Murph. 466) and Vass & wife v. Hicks. (3 Mur. 493.)

At common law, there could not be a limitation of personal chattels, after a life estate created by deed. It was also field, that in a gift or limitation of slaves, after a life estate reserved by the donor, the limitation was not good ; because the life estate might be lawfully reserved, and the limitation over on that account was too remote, and this was in conformity (as was supposed) with the principle before laid down, that there could not be a limitation of personal chattels, after a life estate. (Black v. Beattie, 2 Murp. 240—Graham v. Graham, 2 Hawks 322—Foscue v. Foscue, 3 Hawks 538.)

Whether it would not have been more correct to say, the reserved life estate was void, as being inconsistent with the grant, and that the gift or limitation passed the property in prcesenti, it is too late, and of course unnecessary to decide; becáuse too much property depends upon thpse decisions, and because the Legislature have authorized limitations of slaves after life estates.

We must therefore conclude, that the limitation over, after an estate reserved to the donor Thomas Baker and his wife for their lives* is void ; ami therefore that no-thins vested in Elizabeth, the daughter. The judgment must be reversed, and judgment entered for the Defendant.

Per Curiam. — Let the judgment of the Court below he reversed, and enter a judgment fo’r the Defendant*