Murphy v. Merritt, 48 N.C. 37, 3 Jones 37 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 37, 3 Jones 37

PATRICK MURPHY vs. MARY MERRITT.

A provision in a deed of gift of slaves, “ reserving unto myself and to my wife M.j the use of the said granted negroes, during the term of our natural lives,” does not reserve an estate during th% joint lives of the donor and his wife, but gives it to the husband for life, then to the wife for life, and then to the ulterior donee; such donee, therefore, is not entitled to the property until both these lives are extinct

Action of detinue, tried before Ellis, Judge, at the Eall Term, 1855, of Sampson Superior Court.

The action is brought by the Administrator of the donee, Catharine Merritt, to recover the slaves mentioned in the following deed of gift, viz:

“ Know all men, that I, Daniel Merritt, of the State of North Carolina and county of Sampson, for and in consideration of the natural love and affection which I have and bear unto my grand-daughter Catharine Merritt, daughter of Bradley Merritt, of the same state and county, and divers other good causes me hereunto moving, and more especially for the better promotion and maintenance of my said grand-daughter, have given, granted, aliened, and conveyed, made over, and confirmed, and by these presents, do give, grant, convey, make over, and confirm, unto her the said Catharine Merritt, her heirs and assigns forever, my two little negroes, "William and Kitty; "William, aged between two and three years; Kitty about six or seven months—to have and to hold the aforesaid negroes, unto the said Catharine Merritt, her executors, administrators, and assigns forever; and I, the said Daniel Merritt, do hereby warrant and forever defend the aforesaid granted negroes, unto her the said Catharine Merritt, her heirs, executors, administrators, and assigns, from and against me, the said Daniel Merritt, my heirs, executors, administrators, and assigns; also from and against the lawful claim or claims of all and every person, or persons whatsoever, reserving nevertheless unto myself, and to my wife Mary, the use of the said granted negroes during the term of our natural lives. Iii witness, I, the said Daniel Merritt, have hereunto set my hand and seal, this 10th day of February, 1839.”

The donor, Daniel Merritt, was dead at the time of the bringing of this suit, and the defendant is his widow, the said Mary, mentioned in the above deed. Catharine Merritt married one Oliver Sellers, and was also dead when this suit was brought, and the plaintiff is her administrator. The plaintiff also gave in evidence a bill of sale from Oliver Sellers to him for the said negroes.

It was contended in behalf of the defendant on the trial, that the deed reserved a life estate to her ; but if this reservation was not good, yet the said Catharine took no estate until after the death of the defendant Mary. Ilis Honor intimating an opinion that the plaintiff conld not recover, he took a non-suit and appealed to this Court.

Reid, for plaintiff.

Shepherd, for defendant.

Pearson, J.

"We concur with his Honor in the opinion, that according to the proper construction of the reservation, ilie plaintiff, who claims under the donee, is not entitled to the slaves until after the death of the defendant Mary, the wife of the donor. The reservation is, not of an estate during tlio jomt lives of the donor and his wife, but an estate is reserved to tlie donor and his wife ; so that they are to have the use, that is, the enjoyment of the slaves, as property, during the term of “ our natural lives,” meaning the natural life of both himself and his wife. This is clear.

Per Curiam.

Judgment affirmed.