Whitehurst v. Harker, 37 N.C. 292, 2 Ired. Eq. 292 (1842)

Dec. 1842 · Supreme Court of North Carolina

37 N.C. 292, 2 Ired. Eq. 292

ELISHA WHITEHURST, ADM’R. &c. vs. ANSON HARKER, EX’R. &c. AND OTHERS.

A bequest of moveable property or moveables, when there is nothing in the will to restrict the meaning of those terms, includes slaves and every other species of personal property.

Where there is a legacy of slaves to A. for life, and after her death to B. and two others, and the husband of B. dies in the lifetime of the tenant for life, the share of B. on the death of the tenant for life will go to her in her own right, and not to the administrator of her husband.

The eases of Hines v Lewis’ Ex’ors. Tay. 44. Poindexter v Blackburn, 1 Ired. Eq. Rep. 286; and Komegay v Carroway, 2 Dev. Eq. Rep. 405, cited and approved.

This cause was removed by consent of parties from the Court of'Equity of Carteret county, at Fall Term, 1842, to the Supreme Court. - The bill was filed by the plaintiff, as administrator with the will annexed of Eben Harker dec’d., to obtain the opinion of the court upon certain questions arising on the construction of the said will. The legatees and distributees of the said Eben Harker, and also the ad-ministratrix of a deceased husband of one of the legatees, were made parties defendant. The questions, about which advice was asked, and the matters to which they relate, are stated in the opinion delivered in this court.

J. TI. Bryan for the plaintiff.

No counsel for the defendant.

Daniel, J.

.Eben Harker made his will, and, after several devises and bequests, the following clauses occur in his will: “ I do give to my wife all my moveable property, that is not above mentioned, during her natural life;” “ and after her (that is, his wife’s) death, I desire that all the moveables of mine, that I have not before mentioned for my three daughters, n ay be equally divided between my three daughters, according to the discretion of my executors.” The testator, at his death, was the owner of a slave named Rose, who was not particularly mentioned in his will. During the life of the testator’s widow, Rose had several children. ’The first question asked of the court is, Whether these slaves passed by the will under the words “ moveable property.” Slaves are personal property. Personal chattels are distinguished from real estate and chattels real by the mobility of their character. They are called personal, because they can be moved from place to place with the person of the owner. If there were any thing in the will to shew.that the testator used the word “ moveables” in a more restricted sense, we should certainly so interpret it. But there is nothing indicative of its being so used, and it should be understood in its general sense, more especially as, if it be not so understood, a partial intestacy will be the result. We are therefore of opinion, that the slave Rose and her increase passed, by the aforesaid words in the will, to the widow for her life, and on her death to the testator’s three daughters, or their personal representatives. Secondly; Caleb W. Calloway, the husband of Sabra, one of the testator’s daughters, died in the life-time of the widow, tenant for life. The one third of the slaves, Rose and her increase, on the death of the said particular tenant for life, went, we think, to the said Sabra in her own right, and not to her as the administratrix of her husband. Hines v Lewis' Ex'ors. Taylor’s Rep. 44. Poindexter v Blackburn, 1 Ired. Eq. Rep. 286. Kornegay v Carroway, 2 Dev. Eq. Rep. 405. Grey v Kentish, 1 Atk. 280, ed. by Saunders. Gayner v Wilkinson, 2 Dick. 491. 1 Bro. Ch. Ca. 50. 1 Roper on Husb. & Wife, 245. The decree will be drawn accordingly.

Pee Curiam. Decree accordingly.