Miller v. Ellison, 38 N.C. 123, 3 Ired. Eq. 123 (1843)

Dec. 1843 · Supreme Court of North Carolina

38 N.C. 123, 3 Ired. Eq. 123

JOHN MILLER vs. HENRY ELLISON & AL.

A testator by his last will bequeaths certain, slaves, to A. & B., and devises ■ and bequeaths all the rest of his estate to the said A. B.; and then directs his executor to use all lawful ways and means to procure the emancipation of the said slaves — and if they can be emancipated then the said property to go to them, if they cannot be emancipated, the property to belong absolutely to A. & B. The executor files a bill stating that he is unwilling to give the bond required by law on the emancipation of a slave, and praying the advice of the court as to whether the next of tin and heirs of. the testator, or A. & B. are entitled to the property, and a decree that they may interplead; and mating only the said A. & B. and the said next of kin and heirs parties — Held that the bill must be dismissed because the executor has not made the slaves parties defendant, either by the Attorney General or by some relator. '

This ctiuse was removed by consent from the Court of Equity of Randolph county, at Spring Term, 1843, to .the Supreme Court.

The bill wns filed by the plaintiff', as executor of Simeon McMasters, dec’d, and set forth that the said Simeon, after .having duly made his last will and testament, of which he appointed the plaintiff executor, died about the year 1840. In the second clause of this will the testator gave to Henry Ellison and Jesse Kemp a tract of land containing 150 acreSr jn tfje third clause, he gave to Henry Ellison his slave Creecy, and to Jesse Kemp his slave Aaron. In the fourth clause, he bequeaths all the residue of his estate, consisting of “ horses, cattle, &c.” to Henry Ellison and Jesse Kemp. In the fifth clause, the testator enjoins it upon his executor to use all lawful ways and means to emancipate the slaves Creecy and Aa-on according to the laws of this State. The will then proceeds, “ and if, at any time, their liberation shall be effected according to law, whether they shall continue to reside in this State, or consent to remove as now required by law, that then, on their becoming legally free and emancipated, my will and desire is that all the property and estate, whether real or personal, shall bs vested in them, the said Creecy and Aaron, to their own use arid behoof forever, so far as they may be capable of holding the same, or so much ot the said property and estate as may not have previously been expended by the aforesaid Henry Ellison and Jesse Kemp, who, in the event of such emancipation as aforesaid being effectuated, shall be considered as trustees only holding for the uses and intents herein last expressed and set forth; but in case such liberation shall not take place, then and in that case all the devises and bequests herein made to the said Henry Ellison and Jesse Kemp are to be absolute, unconditional and forever, as heroin expressed in a former part of this my will.”

The plaintiff then states, that he is unwilling, and refuses to execute the bond, required by the act of Assembly, in cases where slaves are directed by will to be emancipated, and calls on Kemp and Ellison on the one hand, and, on the other hand, the other defendants, who are the next of kin and heirs at law of the testator, to interplead. And he prays the court to make a decree accordingly j and also to aid him in the construction of' the will, and in the execution of the trusts.

The answers of the heirs and next of kin stale, that they have never set up any claim to the property. The dants Ellison &. Kemp claim the property, alleging that as the executor refuses to make any attempt to effect the emnn. cipalion of the slaves, no one else has a right to do so, and therefore, they, the said defendants are entitled — but they state they are advised that the case stated by the bill docs not authorize an order that they should interplead with the other defendants.

The cause was then set tor hearing and sent to the Supreme Court.

No counsel for-the plaintiff,-

Winston and Mendenhall for the defendants.

Daniei, J.

The court cannot make any order in the cause, that the defendant shall interplead. Neither the next of kin nor the heirs at law, according to the plaintiff’s own shewing, have any possible interest in the trust fund. If the emancipation of the slaves Creecy and Aaron should fail, then the real and personal estate divised to Ellison and Kemp, in trust for Creecy and Aaron, on the event of their emancipation, is to be no longer held by them in trust ; but is to be then the unconditional property of the said Ellison and Kemp. Secondly; the two slaves Creecy and Aaron are not before the court, either by the Attorney General or any relators. We therefore cannot, in the present state of the pleadings, pronounce any opinion, whether the .executor, by taking on himself the trusts of the will, is or is not compelled to give the bond required by the act of Assembly, in case the slaves are willing on their part to comply with the act.

The bill seems to have been framed to enable the executor to administer the estate, with the apparent sanction of the .court to his refusal to take the proper steps to emancipate the slaves, and, at the same time, without putting it in the power of the'court to require him to do it, if it should be deemed his duty. Such a bill cannot be entertained. It must, therefore, be dismissed with costs, as to the defendants, who are the next of kin and heirs. Costs would also be to Kemp and Ellison, if there were not reason to believe, that they assented to this mode of proceeding; since their answer is received without being sworn to, and they would have the benefit of allowing the executor thus to evade the enquiry, whether he had duly endeavored to procure the emancipation of the negroes, or allowed them or other persons for them to do so.

Per Curiam, Bill dismissed.