Holton v. McAllister, 51 N.C. 12, 6 Jones 12 (1858)

Dec. 1858 · Supreme Court of North Carolina

51 N.C. 12, 6 Jones 12

CORNELIA W. HOLTON v. SARAH McALLISTER.

Where slaves were limited, by deed, in 1844 to A, her heirs and assigns, and in case the said A should die before she has an heir ef her body, then B shall have and possess the same as though they had never been given as aforesaid to A, it was Held that on the death of A without having had issue, the limitation to B was valid.

Action of detinue, tried before SaundeRS, J., at the last Pall Term of Richmond Superior Court.

This is an action of detinue for certain slaves, the children of a woman named Caroline, formerly the property of John McAllister. On the 20th of Dec., 1844, he, by deed of gift, conveyed her, with her increase, to Ms daughter, “ Sarah Ann McAllister, her heirs and assigns, and in case the said Sarah Ann shall die before she has an heir of her body, then my grand-child, Cornelia W. McAllister, (who is the present plaintiff) shall have and possess the said Caroline and her children, as though she had never been given as aforesaid to my daughter Sarah Ann,” with other limitations over in case the plaintiff should also die without heirs of her body.

Sarah Ann married in December, 1850, and died in February, 1857, without ever having had issue ; and after a demand and refusal, the plaintiff brought this suit in September, 1857.

On the trial, the counsel for the defendant insisted that the limitation over to the plaintiff was not good, and that the absolute property in Caroline and her issue, vested in Sarah Ann McAllister; that there were no effectual words of gift to the plaintiff of Caroline, or, particularly, of her increase. Ilis Honor gave his opinion to the contrary, and there was a verdict for the plaintiff and judgment, from which the defendant appealed.

Winston, Sen., for the plaintiff.

JBanles, for the defendant.

Ruffin, J.

The act of 1823, makes every limitation in remainder by deed effectual, which would be good by an exec-utory bequest; and it seems plain, that, notwithstanding the words “heir of the body” of Sarah Ann,.found in the deed, the event of her dying without heirs is tied up to her life, since the slave is to go over in case of her death “ before she has” such heir. But if there could be any doubt on that point, it is removed entirely by the act of 1827, Rev. Stat. ch. 43, sec. 3, which provides that every contingent limitation in a deed or will, executed after the 15th of January, 1828, “made to depend upon the dying of any person without heir or heirs of the body, shall be held and interpreted to be a limitation to take effect when such person shall die without having such heir living at his death,” unless the intention be otherwise expressly declared in the instrument. If, then, this deed, instead of making the limitation over to depend on Sarah Ann’s death “ before she has an heir of her body,” had made it on her dying “ without an heir of her body,” it would have been good, since the deed is to be read as if the words “ living at her death” had been added ; and those-words always made a good executory bequest, and, consequently, now make a valid limitation in a deed.

The other objections were properly abandoned by the counsel in this Court. Eor, unquestionably, the issue of a female slave goes with the mother, in remainder, by the rule of law. But here, the children of Caroline are expressly limited over with the mother, and the words are, moreover, that upon the death of the daughter, the grand-daughter “ shall have and possess the slaves and they amount to an express gift in remainder, or by way of executory limitation.

Per Curiam, Judgment affirmed.