Dicken v. Cotton, 22 N.C. 272, 2 Dev. & Bat. Eq. 272 (1839)

June 1839 · Supreme Court of North Carolina

22 N.C. 272, 2 Dev. & Bat. Eq. 272

EPHRAIM DICKEN, Ex’r. of GODWIN COTTON vs. JOHN W. COTTON et uxor et al.

A lapsed legacy of slaves will not pass under the residuary clause of a will giving “the residue or balance” of the testator’s money;” but will be a residuum of the testator’s property, undisposed of by his will, and of course goto his next of kin.

The ’case of Simms vs. Garroit, 1 Dev. & Bat. Eq. Cas. 395 approved. A charge on a partial residue given in the will, operates for the benefit of the other legatees; but none of the legacies are to abate, unless the ■ undisposed property should prove insufficient for the payment of debts.

This bill was filed by the executor oí Godwin Cotton, for advice as to the construction of his will, which contained, among others, the following clauses, to wit: “I give and bequeath unto Gemisou G. Cotton, son of Arthur L. Cotton, two hundred and fifty dollars. 2ndly, I give and bequeath unto Edwin Whitehead, son of Joseph Whitehead, deceased, two hundred and fifty dollars. 3rdly, I give and bequeath unto Mary Godwin Cotton, daughter of Joseph Whitehead, deceased, two hundred and fifty dollars. 6thly, I give and bequeath unto Laura P. Cotton, wife of John W. Cotton, Eliza Thompson, wife of Noah Thompson, and Ephraim Dieken of Tarborough, all my negroes, (except negro man Eli,) to be equally divided between Laura P. Cotton, .Eliza Thompson, and Ephraim Dieken, share and share alike. — . 6thly, I give and bequeath unto my negro man Eli, his freedom, and three hundred dollars in money, to be left in the hands of my executors, &c. 9thly, It is my will and desire, that after all my just debts are paid, and the aforesaid legacies are paid, that the residue, or balance of my money, be equally divided between Henry L. Irvin, Thomas B. Irvin, and Christopher L. Dicken, share and share alike.”

The executor charged in his bill, that Gemison G. Cotton and Eliza Thompson had died before his testator, whereby, he was advised that their legacies had lapsed. He then stated that there was a deficiency of assets to pay the debts, except from the hire of the negroes, and that he was advised the persons entitled to the negroes, were entitled to their hires, to be reimbursed from the residue of the estate; and that there was no fund in his hands to pay the pecuniary legacies mentioned, except the negroes given to Eliza Thompson', and which lapsed by her death, before the death of his testator; but, as to that, and the negro Eli, the executor said that he was in doubt whether they passed under the residuary clause in the will; whether the legacies were to be paid— if paid at all — as to their whole amount, or should abate pro rata; or whether, as to the negroes given to Eliza Thompson, and the man Eli, the testator died intestate, and the said negroes thereby went to the next of kin of’ the testator.

To the bill, answers were filed, and upon the hearing in the Supreme Court, whither the cause was transmitted, it was represented that the man Eli had refused the gift of freedom, on account of the requisition in the law that, he should leave the State.

B. F. Moore and Iredell for the next of kin.

Badger and J. H. Bryan for the residuary legatees.

Gastow, Judge.

It is represented by the parties in this suit, that the negro man Eli refuses the gift of freedom, because of the condition to leave the State, which the law annexes to emancipation. The question, therefore, is not presented whether, since our act of 1830, (1 Rev. Stat. ch. 111, sec. 58,) a bequest of freedom to a slave is to'be deemed null, or construed an injunction on the executor to procure his emancipation, according to the provisions of that act.

The legacy to Eliza Thompson, having lapsed by her death before the testator, the negroes bequeathed to her, as well as the negro Eli, fall into the residuum of the testator’s estate; and the question is, whether that residuum is disposed of by. his.will. The defendant Irvin, and others, claim it, under the 9th clause of the will. We are of opinion, however, that the terms made use of in that clause, “the residue or balance of my money,” are not general enough to take in these negroes. Simms vs. Garrott, 1 Dev. & Bat. Eq. Cas. 395. They are therefore indisposed of by the will, and go to the next of kin.

The charge on the partial residue, bequeathed in the 9th clause, operates for the benefit of the other legatees. But none of the legacies are to abate unless the undisposed property should prove insufficient for the payment of debts.

Pee, Cueiam. Decree accordingly.