Lewis v. Smith, 23 N.C. 145, 1 Ired. 145 (1840)

June 1840 · Supreme Court of North Carolina

23 N.C. 145, 1 Ired. 145

DAVID LEWIS, Adm’r. of DAVID W. and JOHN KEMP, vs. DAVID SMITH, Ex’r. of WILLIAM KEMP.

Where a testator bequeathed certain slaves to one for life, and then over to another person, and the legatee for life, -without any renunciation of record by the executors named in the will, obtained letters of administration with the will annexed, upon the estate, and took possession of the slaves, and retained them for more than thirty years, until his death, it was held, that the jury might infer an assent of the executors,' or make any other reasonable presumption of fact, to uphold the right of the legatee in remainder.

The interest in an executory devise or bequest is transmissible to the" heirs or executor of one dying before the happening of the contingency upon which it depends.

This was an action of Detinue, for a negro woman slave,named Dorcas, and her two children, Jim and Maria. Plea — ■ non detinet.

Upon the trial, at Bladen, on the last circuit, before his hon- or Judge Bailey, it appeared that one Joseph Kemp died in the year 1805, leaving a will, which was admitted to probate; and William Kemp, the defendant’s testator, qualified as administrator with the will annexed, at the September Term of the County Court of Bladen of that year. By this will, Joseph Kemp left James Morehead and William Robeson his executors, who never renounced the executorship of record, though it appeared that they were living several years after the death of Joseph Kemp; and that one of them died in the year 1813, and the other, four or five years before William Kemp. The will of Joseph Kemp contained the following clause:

“ I give to my son, William Kemp, two negro women, Dorcas and Ruth, during his natural life, and, at his death, to his oldest lawful son, if he arrives to the age of maturity; but, if he should have no son, or he should not arrive to full age, in that case, the said negroes and their increase to be equally divided between my two sons, David and John Kemp.”

Soon after the death of Joseph Kemp, his son William took possession of the slaves, Dorcas and Ruth, and retained possession of Dorcas and her two children, Jim and Maria,until his death, in 1836. William Kemp died without havjyg any child; and it appeared that he survived David and John Kemp several years. At May Term, 1837, of Bladen County Court, the plaintiff took out letters of administration on tjie esjates of David and John Kemp, and after a demand and refusal of the slaves in question from the defendant, brought this action. The defendant’s counsel contended that the grant of administration with the will annexed to William Kemp upon the estate of Joseph Kemp, was void, inasmuch as the executors, James Moorhead and William Robeson, never renounced the executorship of record, and that as they never refused the executorship, they or their executors were the proper persons to bring the action, and consequently the present plaintiff could not sustain it; and that the grant of administration with the will annexed to William Kemp being void, no presumption of assent on his part to the ulterior legatees could arise; and that William Kemp having held these slaves for thirty years, held them adversely to the executors of Joseph Kemp, and to all other persons; and, by his long possession, acquired a perfect and indefeasible title.

The defendant’s counsel contended further, that the bequest to David and John Kemp was a contingent legacy, and that as they died before the contingency happened, upon which their legacy was to vest, viz: before the death of William Kemp without a lawful son, their legacy lapsed, and was not transmissible to their administrators.

His Honor overruled these objections, and instructed the jury that if William Kemp, elected to hold the slaves as legatee under the will of his father, Joseph Kemp, and qualified as administrator with the will afmexed of the said Joseph, the jury had a right to infer the assent of the executors to the ulterior legatees; • and that if they did so infer said assent, the title to the slaves in question was in. the present plantiff. He further charged the jury, that although David and John Kemp died before William, yet, if William died without having a lawful son, the legacy would not lapse, and the present plaintiff would be entitled to recover. The plaintiff had a verdict and judgment,, and the defendant appealed.

No cousel appeared for either party in this court.

Gaston, Judge.

We are satified with his Honor’s charge to the jury, and see no cause to reverse the judgment in this

case. It may indeed have been'well questioned whether William Kemp, or the representatives of William Kemp, alter he had obtained letters oí administration with the will, annexed of Joseph Kemp, and had acted as such administrator without question during the lives of the persons therein nominated as executors, could be received to object that he was not administrator, because there was no renunciation of the executors of record; but however this might be, if William Kemp did (in the language of the Judge) “elect to hold the negroes as a legatee under the will of Joseph Kemp,” the court and jury were justified in any reasonable presumption of fact, after an undisturbed possession for thirty-three years, and until the expiration of his interest in the legacy, to uphold the right of the legatees in remainder under the same will.

The second question raised is free from doubt. The interest in an executory devise or bequest is transmissible to the heir or executor of one dying before the happening of the contingency upon which it depends. Let the judgment be affirmed.

Pee. Curiam. Judgment affirmed,.