Hyman v. Williams, 34 N.C. 92, 12 Ired. 92 (1851)

June 1851 · Supreme Court of North Carolina

34 N.C. 92, 12 Ired. 92

WILLIAM T. HYMAN vs. WILLIAM K. A. WILLIAMS.

A bequeathed as follows: “ I loan to my wife Charity, ono nogra man Primus” ((and other negroes) ; “ also sho may take choice of any one of the negro girls belonging to my estate, which I may not give away,” &c. “ and, at the death of my wife the negroes I have loaned to my wife and their increase I want to be equally divided between my four grand children A , B. Ac.” Held that the wife took a life estate only in the negro girl selected by her from those not given away,

A residuary clause operates as a limitation of ,the interest of the tenant for life, and passes it over as effectually, as if there had been an express limitation over of the specific thing.

The cases of Jones v Perry, 3 Ire. Eq. 200, Speight v Gatlin, 2 Dev. Eq. 5, and Saunders v Gatlin, 1 Dev. and Bat. Eq. 86 cited and approvod.

Appeal from the Superior Court of Law of Martin County, at a special Term in June 1851, his Honor Judge Dick presiding.

Detinue for a slave Hasty and a horse, which was decided on a case agreed. James Burnett by his will bequeathed and devised as follows : 11 Item 1st: I loan to my wife Charity, one negro man Primus, one negro woman Mahaly, one boy Hampton,, and negro woman Amy; also my wife may take choice of any one of the negro girls belonging to my estate which I may not give away; also two head of horses, such as she may think proper to take; also all my cleared land and as much of the woodland as she may think proper; and at the death of my wife the negroes I have loaned to my wife and their increase I want to be equally divided between my four grand children Henry R. Watts, James H. Watts, Charity Mitchell, and Mary Mitchell; also the land I have loaned to my wife at her death I wish for it to be divided between my two grand children Henry R. Watts and James H. Watts.” Then follow dispositions of slaves and other goods in three Clauses, and then this item: “ 5thly, All the negroes and property of every kind which I have not given away hereinbefore, I wish my executor to sell enough of said property to pay my debts, and the balance to be equally divided between my said grandchildren, Henry R. Watts and James H. Watts.”

The testator left two negro girls not specifically bequeathed to any other person, and his widow took one of them named Hasty, under that part of the clause giving her the choice of one, and she also selected two horses — to all which the executor, (who is the defendant in this suit.) assented. Mrs. Burnett made a will and appointed the plaintiff the executor, and then died, in 1850. Thereupon the defendant took Hasty and one of the horses into his. possession, alleging that Mrs. Burnett was entitled to them for her life only under her husband’s will; whereas the plaintiff claims, that they belonged to her absolutely. To determine the controversy this action was brought, and it was agreed, if the Court should be of opinion for the plaintiff, that there should be judgment for him as therein particularly mentioned ; but that if the opinion should be to the contrary, there should be judgment of non suit. There was judgment in the Superior Court for the plaintiff in respect both to the slave and the horse; and the defendant appealed.

Hodman, for the plaintiff.

B. F. Moore and Biggs for the defendant.

Ruffin. C. J.

The Court holds, that the widow took for her life only. All the gifts to her are in one item or clause, and there is no word of gift in it, but loan” in the beginning. That, to be sure, is improperly used as a verbq but it is the vulgar use of it among the illiterate instead of “lend,” and the sense is’very plain here. It applies to all • the subjects of the bounty to the wife. The argument for the plaintiff is, that the language used in respect of this girl and the horses amounted to independent, and. thetefore,absolute gifts. But, besides the circumstance just noticed, that there is-no word of gift in reference to these things in particular, there are the facts, that those parts of the clause are connected, in each case, with what precedes them by the'word “also,” that is “in the same manner,” and showing that the wife was to. take them as she did the negroes given by name. This is rendered the clearer upon the will, because, in the same-clause, the land is afterwards given to the wife in a manner precisely similar to that of the gift of the girl to be chosen by her: that is, by the connecting adverb “also,” and without applying any word of gift or loan to the land in-particular: th’e words being, “also all my cleared land and as much of my. wood land as she may think proper;” yet. in the conclusion of this very clause,.alter giving over the negroes, lent to the wife, to four grand children, the testator adds, “ also the land loaned to my wife, at her death I wish to be divided” between two of these same grand, children. This is a plain declaration, that “.loan” in the. first- of the clause was understood by the testator as. reaching the land ; and consequently it relates to and controls all the gifts made to the wife in that clause and limits them to her life. The plaintiff, therefore, has no title to the slave Hasty, who is included with the others in the gift over to the four grand children. Nor has he a title to the horse for, although it is not limited over specifically after the death, of the 'wife, and although it be true that a loan for life of a personal chattel is a gift for life, and, without more, passes., the whole property, yet it has been held, that a residuary clause operates as a limitation of the interest of the tenant for life, and passes it over as effectually as if there had been an -express limitation over of the specific thing. Jones v Perry, 3 Ire. Eq. 200—Speight v Gatlin, 2 Dev. Eq. 5—Saunders v Gatlin 1 Dev. and Bat. Eq. 86.

Per CuriamI Judgment reversed, and judgment of hoa, suit according to the case agreed.