Pendleton v. Blount, 21 N.C. 491, 1 Dev. & Bat. Eq. 491 (1837)

June 1837 · Supreme Court of North Carolina

21 N.C. 491, 1 Dev. & Bat. Eq. 491

SARAH PENDLETON et al. v. JOHN C. BLOUNT et al.

A testatrix, after a bequest of slaves, which was void, being for their emancipation, directed the balance of her estate to he sold, and after paying all her just debts, the surplus, if any, to be retained in the hands of her executor, and two-thirds of it to be laid out by him, for the clothing and support of her brother’s children, and the other third to be for the use of the slaves: It was held, that the children of the testatrix’s brother were only partial residuary legatees, and that she died intestate as to the slaves, and one-third of the residue besides them.

Elizabeth Brasier, by her will, gave all her ne-groes to her “ executor hereinafter named, to be by him hired out annually to such person or- persons as he may think proper, and the hire of the said negroes I leave as a fund f°r Iheir support when they are too old, or unable to suPPort themselvesand after sundry particular instructions for their comfort, and for removing them to another state or to Africa, and giving several small specific legacies, she proceeded as follows: “ It is my wish and desire, that all the balance of my property be sold, and after paying all my just debts, the surplus, if any, be retained in the hands of my executor, and two-thirds of it be laid out by him at his discretion, for the clothing and support of my brother Thaddeus Pendleton’s two smallest children; and the other third to be kept for the benefit of my negroes when he may think they need it.”

June, 1837.

The plaintiffs were the two residuary legatees, the children of the testatrix’s brother. The defendants were the executor and next of kin; and the bill charged, that the bequest of the slaves being for emancipation, was void, and that the slaves fell into the residue and passed, two-thirds of them, to the plaintiffs. The bill admitted a right in the next of kin to distribution as to one-third of the slaves, and of the residue as created by the will; and prayed for an account and division accordingly. The defendants claimed, that the testatrix died intestate as to her slaves.

Devereux, for the plaintiffs.

Kinney, for the next of kin.

Daniel, Judge.

It is very clear, that the bequests of the slaves in the manner stated, and the one-third of the fund produced by the sale of the balance of the property, and directed to be kept for testatrix’s negroes, are illegal and void. Sorrey v. Bright, ante, p. 113. The question then arises, does a trust result for the plaintiffs of two-thirds of the slaves and the fund contemplated by the will to be for their benefit; or does the whole of the slaves, and the said fund go to the nextofkin,asin a case of intestacy? Had the plaintiffs been expressly named general residuary legatees, their claim would be well founded. But it seems to us, that the plaintiffs are only partially residuary legatees, and that of a particular fund. Out of “ the balance” of her property, her debts were to be paid, and then the “ surplus,” if any, “ to be held by the executor, two-thirds of it, (viz. the surplus, if any,) for the clothing and support of the plaintiffs, “ the other third to be kept for the benefit of my negroes.” The intention of the testatrix is very clear, that the plaintiffs were to be excluded in any event from taking, as residuary legatees, the one-third of the fund set apart for the negroes. And her intention is-equally clear, that her slaves were not to compose a part of the residue, since one-third of that very residue is given to the slaves themselves. Her intention was to confine the legacy of the plaintiffs, to the two-thirds of a surplus, arising out' of a particular fund, when her debts charged on that fund should be paid. This being the intention as is plainly to be gathered from reading the will, the plaintiffs’ claims cannot be allowed to the extent set up. The'. bequests , relative to the slaves, or the fund mentioned in the will for the slaves, are illegal and void bequests. The slaves and said fund belong to the next of kin, and must be divided among the plaintiffs and the defendants as they each may be respectively entitled under the statute of' distributions.

Per. Curiam. Decree accordingly.