Parish v. Merritt, 48 N.C. 38, 3 Jones 38 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 38, 3 Jones 38

RICHARD PARISH, ADM’R. vs. MARY MERRITT.

In a deed of gift of slaves from a grand-father to his grand-child, after the granting clause, occurs the following, viz: “reserving nevertheless, unto myself and unto my wife M., the use of the said granted negroes during the term of our natural lives,” Held that the legal effect of the instrument was to vest an estate in the grantor for his life, then in his wife for her life, and then in the grand-daughter.

This was an action of detinue, tried before his Honor Judge Ellis, at the Eall Term, 1855, of Sampson Superior Court.

The questions presented in this case arise upon the construction of the deed of gift from Daniel Merritt to Catharine Merritt, which is set out at length in the case preceding this, against the same defendant. The suit is brought by the administrator of the donor against the widow of the donor to compel her to surrender the slaves.

It was contended on behalf of the plaintiff, that the reservation of the life estate to the wife, was a reservation to himself of the property, for her life, and that he having died leaving her surviving, the interest thus reserved belongs to him as the administrator of the said Daniel, and that the wife could take nothing. His Honor being of that opinion, so instructed the jury, who, accordingly, found a verdict for the plaintiff. Judgment and appeal.

Reid, for plaintiff.

Shepherd, for defendant.

Pearson, J.

The estates reserved to the donor and his wife are “good and effectual in law,” hy force of the Act of 1823, Rev. Stat. cli. 37, sec. 22. So, our question is one of construefrion: what estate vested in the wife according to the legal effect of the deed %

We think it clear that the intention of the donor was to make a substantive gift to his wife, and the introduction of her name was not intended as a word of limitation, but to. designate her as one of the objects of bounty, and to give her the ownership of the slaves during her life-time ; which gift or bounty, of course, would not take effect unless she survived her husband.

We have, then, this case: a life estate is reserved to the husband, then to the wife (if she survives him) with limitation over. The husband dies, and his administrator sues for the slaves.

For the plaintiff it is urged: if a gift is made to a wife for life, the husband takes jure maritñ, although the husband be the donor, and the legal effect is to defeat the gift.

Such is the law, and hence the necessity for interposing a trustee where a present estate is given to the wife. See Garner v. Garner, Bus. Eq. 1.

For the defendant it is urged: by the true construction and legal effect of the deed, the wife does not take a present estate; her estate does not vest in possession until after the estate of the husband terminates—that is, at his death ; so the wife had no such estate as the husband could reduce into possession during coverture; consequently the doctrine of jus'ma/riti has no application.

It is settled, a husband is not entitled to a remainder or reversionary interest of the wife, unless úiq particular estate determines in the life-time of the husband, McBride v. Choate, 2 Ire. Eq. 610. Here the suit is in the name of the personal representative of the husband; consequently all the learning in regard to the effect of an assignment by him, or a sale under an execution against him, has no bearing, and the only question is, does the deed, by its legal effect, give the husband an estate for his life ?

In regard to this, the words are plain, for, as we hold in Murphy v. same defendant, decided at this term, (ante 3T) in construing the same deed, it evidently was not the intention to reserve an estate during the joint lives of the husband and wife, so as to vest the property in the grand-cliild, at the death of thedonor. Clearly, it was them, to belong to his wife.

The legal effect of the deed vested an estate in the husband for his life, then to the wife for her life, and then to the grandchild.

We do not concur with his Honor. Venire de novo.

Per Curiam.

Judgment reversed.