Hales v. Griffin, 22 N.C. 425, 2 Dev. & Bat. Eq. 425 (1839)

Dec. 1839 · Supreme Court of North Carolina

22 N.C. 425, 2 Dev. & Bat. Eq. 425

JOHN J. HALES et al. vs. RICHARD GRIFFIN et uxor et al.

Where a testator devised and bequeathed all his estate, consisting of land, slaves'and perishable property, such as household furniture and live stock, to his wife for life, and then proceeded, “ and at the,death of my wife, the property then remaining to go to my son A. H. And provided he should be then dead, to go to his lawful heirs, if any; and provided the said A. H. should die before his mother, and die childless, then the remaining property, after the death of my wife, to be sold, and to be applied” to certain specified purposes; it was held, that the wife took but a life estate in the land and slaves, that the son did not take a vested‘but only a contingent interest in this-property, and that upon the death of the son, in the life time of his mother, leaving children, the children took such an interest in the slaves as entitled them to apply to a Court of Equity to restrain the tenant for life from selling the slaves out of the State, and to compel her and her vendees to give security for the forthcoming of the slaves at her death.

Daniel Hales made his will, and therein devised and bequeathed as follows:

“ I give and bequeath to Sarah Hales, my wife, all my es: tate real and personal, during her life; and at the death of my ivife, Sarah Hales, the property then remaining to go to my son, Alexander Hales. And provided he should be then dead, to go to his lawful heirs, if any; and provided the said Alexander Hales should die before his mother, and die chadless, or without lawful heirs, then the remaining property, after the death of my wife, Sarah Hales, to be. sold, and the money to be applied to maintain worn out travelling Methodist preachers,”

In a consid-erabie class of casos & devise oí-w/?a/sAo°i íeheft^at the decease deviseePoi-°l be!n held”

The testator’s son, Alexander, died in the life time of his rno^er> leaving the plaintiffs, his two children. The testator’s estate consisted of land, slaves and perishable property, SllC^ &S k°usek°^ furniture and live stock. The widow s°ld to the other defendants several of the slaves; and the bill charged that she threatened to sell others of the slaves to persons who would carry them beyond the limits of the State to parts unknown;' so that the plaintiffs would lose all benefit of them. It charged further, that the other defendants intended .to send the slaves purchased of the widow out of the jurisdiction of the Court. The bill then prayed for an injunction, and that the defendants should be compelled to give security for the forthcoming of the slaves upon the death of the tenant for life; and for general relief.

After the filing of the bill, the widow, Sarah Hales, intermarried with Richard Griffin, who was thereupon made a party defendant.

The defendants by their answer insisted that, under a proper construction of the will, the widow had a right to dispose of all or any of the slaves, or such of the other property as should conduce to her comfort and respectability. They de-med any intention of removing the slaves -beyond the juris, diction of the Court; and insisted further, that if the clause in the will made a good executory devise of the slaves, the remainder, after the estate for life to the widow, vested in Alexander Hales, and that his personal representative, and not the plaintiffs, would be entitled.

Alexander for the plaintiff.

D. F. Caldwell for the defendant.

Daniel, Judge,

after stating the case as above, proceeded ®-s follows: In a considerable class of cases, a devise or bequest of what shall remain or be left at the decease of the ~ “ prior devisee or legatee, has been held to be void for uncertainty. Bland v. Bland, 2 Cox. 309— Wynne v. Hawkins, 1 Bro. C. C. 179—Sprague v. Barnard, 2 Bro. C. C. 585 — Pushman v. Filliter, 3 Ves. 7— Wilson v. Major, 11 Ves. 205 — Bull v. Kingston, 1 Mer. 314 — Eade v. Eade, 5 Madd. 118. But, it may be remarked, that where a part of the property comprised in such a gift.consists of household furniture, or other articles of a perishable nature, (as in this case,) these words may fairly be considered as referring to the use and wear by the first taker. Such, it is clear, would be the construction, if it were limited to him expressly for life. Powell on Devises, 352. (Jarman’s note.) indeed, there not any case in which such expressions have been held to render the gift void, where the interest of the first taker was so limited for life; and Cooper v. Williams, Pre. Ch. 71, pl. 64, is an authority against such a construction. We, therefore, are of the opinion that the widow had but a life estate in the slaves. •

for uncei--aBut of the comprised ,sists °f household furniture or ¡fes of a1" perishable nature,these words may ^¿utered as referring to the use and wear of^^g*1^ if ^ expressly for lire; and indeed anyWsenin whioh ?ach expressions have been tier the gift of the „‘ass So i¡m-lor hle‘

Secondly; we are of the opinion that the testator’s son, Alexander, did not take a vested interest in remainder in this property. The remainder in the land, and the executory ,1 .*• J . ^ devise in the personal property, were contingent, dependant upon the event of Alexander dying before his mother, and leaving children who should survive her. Alexander, died ^ in his mother’s life time; he was not entitled to any of the estate, as nothing vested in him. The two plaintiffs (sons Alexander,) may die before their grand-mother; but if do not, the whole estate will vest in them on the tion of her life. The context of the will shews that the testator used the words “ lawful heirs” of Alexander, as synoni- ... 1777 _ _ J moas with the word children of Alexander. It says, if Alexander shall die childless, then the remaining property, after the death of his wife, shall be sold to maintain the * preachers. We therefore think the plaintiff had a right to file this bill.

Upon the evidence connected with the admitted facts, the widow has set up a claim to the absolute disposition the slaves, and has actually sold some of them, this is a proper case in which security should be required for the coming of the negroes, if alive, at the death of the widow, or to abide the future order of the Court. The Clerk of the Court is directed, therefore, to enquire and report as to the value of the said slaves, what security has been already taken, and what further security may be necessary. And the further consideration of the case is reserved.

Per Curiam. Decree accordingly.