Powell v. Slocumb, 4 N.C. 315, 1 Taylor 315 (1818)

Jan. 1818 · Supreme Court of North Carolina

4 N.C. 315, 1 Taylor 315

POWELL and others against E. & I. SLOCUMB, ex’rs of S. POWELL.

This bill was filed to recover distributive shares of the slaves of Sterling Powell, the testator, who, a short time before his death, had given parol directions to his ° 1 _ tors to cause all his slaves to be liberated, in pursuance of which, it was done by the County Court of Wayne.

Distribution is claimed, only of one slave named, York ; as to the otherá, the complainants eraise their claim.

The testator by his will did not bequeath the slaves to any person, but in the third clause he lends to all his slaves, naming them, the plantation on which he lived, besides other articles for their comfort and support, and the clause concludes thus, “ my will further is, that the said negroes and the property by me-willed to them, under the care and directions of my executors and William Flowers, until each one shall arrive at the age of twenty-one years, and then to do and act as they themselves shall ■ i- , „ think proper.

The tssta» will lends* reaJ- and personal to bis slave# for^andTup-' port, which property, to-hi'ssla've'she places under the direction F. ’till each slave coross of age, when ar® 10 pró-Jlause^* lie directs all property not disposed of by his will, to besoldby lus executors, and hi.i debts paid, and the overplus after the payment of debts and legacies to be dispos. ed ofas his executors think proper ■ shortly before his death his slaves were liberated by the County Court on the procurement of bis executors under directions given to them;—> it was held that the executors were discharged*ft*om all accountability as to every part of the personal estate which did not go into their hands subject to a trust; 2ndly where a legacy lapses by the death of a legatee in the lifetime of the testator, or when it becomes void and cannot take effect, it passes into the residuum, unless those events are guarded against: 3dly. By the residuary clause the executors are entitled to the whole surplus áisposed ot, and notning is left which can be rightfclly claimed by the next of kin.

The clause immediately preceding the appointment of his executors is in these words, “ My will further is, that whole of my property, not herein before disposed of, be sold by my executors, and my debts paid; and if any overplus should remain after the payment of my debts and legacies before mentioned, to be disposed of as my executors think proper.”

Gaston, for the Defendant

By the words of the residuary clause the executors are entitled to all that remains after the payment of debts and legacies; “ To be disposed of as they think proper,” is an absolute bequest of the whole, to the exclusion of the next of kin.^*

Shaw for the Complainants.

The executors will be de-r , ,. , . creed trustees tor the next ot kin, wherever n appears cjearjy t0 have been the intention of the testator that they should not have the surplus for their own use.^†

This intention is most frequently collected from parti» cular legacies being bequeathed to the executors: to two of the executors legacies are left by the will. But a stronger indication of his intention is, that the slave York, is not a part of the residue, which he directs his executors to sell; he and the other slaves, and the property willed to them, are to be under the direction of the executors, till such slave arrives at twenty-one years of age.

* 2 Vernon 181 Robinson v. Durgale. Ambler 750. Maskelyne v. Maskelyne.

† 11 Vern. 473.

Seawell, J.

The residuary clause in the will directs the executors to sell the remainder of the testator’s estate both real and personal, not before disposed of; and after paying the debts, the surplus to be disposed of as the ex« ecutors think proper. These latter words clearly absolve the executors, who are the legal owners of the personal estate, from accountability to any one. And this want of accountability goes to every part of the personal estate which had not by the operation of the testator’s will, cona§ joto the hands of the executor subject to a trust.

When the legatee dies in the lifetime of the testator and the legacy becomes lapsed? or when the devise is void, and on that account cannot take effect, yet in both instan-ees, the authorities seem clear, that such legacies shall I •• . into the residuum unless these events are guarded against. \

The testator, by the residuary clause, having bequeathed to the executors all the rest of his estates not before d'sposed of, leaves nothing which the next of kin can claim : for their claim is grounded upon a partial intestacy.

Hall, Daniel, and Ruffin J. concurred.