Morrow v. Williams, 14 N.C. 263, 3 Dev. 263 (1831)

Dec. 1831 · Supreme Court of North Carolina

14 N.C. 263, 3 Dev. 263

Arthur Morrow et al. v. William Williams.

A remainder n chattels, after a life estate, cannot be created by deed.

Detinue for a slave, tried on the last circuit, before his Honor, Judge Norwood. A verdict was taken for the plaintiff, subject to the opinion of the court upon the following case :

Jemima Bradshaw, on the 3,0th of December, 1820, signed an' instrument of which the following is a copy :

“ To ail people to whom these presents s hall come : I " Jemima Bradshaw, for and in consideration of the na- ” tural love and affection, which I have and bear to my >ji beloved son-in-law Arthur Morrow, and my daughter “ Jemima Morrow, and for divers other good considerations mo hereunto moving, have given and granted, “ and by these presents do give and grant unto the said *s Arthur and Jemima Morrow, my negro boy Abraham,” &c. ( mentioning several articles of personal property ) iL to their use, and to use singularly to them, and the “ children of Jemima Morrow, that she may have by her £t said husband, to enjoy full power and possession of after my death, to have and to hold and enjoy all and sin-Yoi,, III. 34 “ gularly tbe said negro boy Mraham See. unto the said “ Mraham and Jemima and their Children. In witness “ whereof &c.

A gift of slaves made by an in-der-e^Tand nn-accompánied by delivery, is void.

The cases of dodt, ffa$. 183,) Nichols v. Car/wns'/it, (2 Mur. l ¶) Ora-£££5&5 Foseuev.Foscue, Button v3ffottow ell, Kmiie 2 wl. 185’) apProve<i'

Jemima Bradshaw.

“ Signed in presence of &c.”

The plaintiffs were the wife of Morrow, and the children born at the date of the paper above set forth.

The plaintiffs moved to amend the writ, but his Honor being of opinion that they could not recover upon the merits, did not notice the motion. The verdict being set aside and a nonsuit entered, the plaintiffs appealed.

Winston and W. Jl. Graham, for the. plaintiffs.

No counsel appeared for the defendant.

Hair, Judge.

Several valid objections occur to the claim of the plaintiffs.

The *s’ ^iac ^16 gift is not established by a deed, or in its absence by evidence of a delivery ; the writing hiti'oduced and relied upon, not being under seal, is nothing more than the declaration of Jemima Bradshaw, ^at sjie g.m, t}ie neg1>0 to her daughter and soii-in-law: but there having been no delivery, no title vested in them, and there being no valuable consideration, no right of property passed from her.

Another objection is, that supposing this writing conveyed the title of the negro, only a remainder is given by the donor, after the expiration of her own life. She gives the negro in appropriate words enough, but adds these words, “ to enjoy full power.-and possession of after my death” Now it has been held in repeated decisions, that such a remainder in personal chattels cannot be created jjy (Gilbert v. Murdock, 2 Hay. 182. Nichols v. Cartwright, 2 Mur. 137. Graham v. Graham, 2 Hawks Sutton v. Hollowell, ante 2 vol. 185. Foscue v. Foscue, 3 Hawks 538.) The doctrine may therefore be "*** • set*“-

But laying these objections out of the case, another might be taken. If the title to the negro passed by the writing, it vested in Jemima and Arthur Morrow, and hot in theii> children. A use only was declared to them, and they ought not to be plaintiffs. The record shows, that a motion was made to amend the writ by striking out, probably to remedy that mistake. But it does not appear what became of it.

These objections arise upon the record, and appear to me to be fatal. I therefore think judgment should be given for the defendant.

Per Curiam. — Judgment appirmer.