Hodges v. Little, 52 N.C. 145, 7 Jones 145 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 145, 7 Jones 145

EDWIN G. HODGES, Administrator with the will annexed of ELIZABETH HOLLAND v. CRANDLE LITTLE.

A bequest of a slave to a man and his wife during their natural lives, and then to the lawful heirs of the wife, gives the absolute estate to the wife by the rule in Shelly’s case, which immediately vests in the husband jure mariti.

Action of detinue, tried before Manly, J., at a Special Term (January, 1858,) of Beaufort Superior Court.

The facts of the case were agreed on and submitted to the Court for its judgment, as follows : "William Gordon died in 1841, leaving a will, in which is contained, among other tilings, the following bequest, out of which the controversy in this case arises : “ I loan to my daughter Elizabeth and to her husband, John D. Holland, during their natural lives, one-fourth part of my negroes, and then I give them to the lawful heirs of Elizabeth.” The slave sued for, was one of those which come to Holland and his wife under this bequest, and passed to the defendant as the property of J. D. Holland under the will of Gordon. Mrs. Holland survived her husband, and supposing she was entitled thereto, willed the slave to two of her children, and this suit is brought by her administrator with the will annexed, to recover him for their benefit.

It was insisted for the plaintiff, that the husband and wife took by a quasi joint tenancy, and the wife had the benefit of survivorship.

The Court being of opinion with the defendant, gave judgment accordingly, from which the plaintiff appealed.

Rodmcm, for the plaintiff.

Wcvrren, for the defendant.

Pearson, C. J.

If the limitation had been to Elizabeth Holland for life, and then to her lawful heirs, there can be no question she would have taken the absolute estate by force of the rule in Shelley’s case. Ham v. Ham, 1 Dev. and Bat. Eq. Rep. 598; Sanderlin v. Deford, 2 Jones’ Rep. 14. Indeed, this position is assumed by Mr. Rodman for the plaintiff.

Taking that to be so, it would follow that John Holland, her husband, would, jure mwriti, have been entitled to the slaves, and, consequently, this action could not have been maintained by the plaintiff, as the administrator of the wife.

We are at a loss to see how the fact that the limitation is to John Holland, as well as to his wife, for their lives, can put him in a worse situation, or make his marital rights less effective in vesting the absolute title in him, than if he had not been named.

The case of Needham v. Branson, 5 Ired. Rep. 426, which was cited and relied on by Mr. Rodman to avoid this conclusion, does not sustain him. In that case, lamd was conveyed to Needham and his wife, and their heirs, and it was held they took estates in fee by entireties, and the wife snrviving, she was entitled to the whole estate. But ours is a case of gift of personal property, in respect to which the mcm'ital rights are very different. If land is given to a wife and her heirs, and there be issue born alive, the husband takes as tenant by the curtesy. If he be included in the gift, he takes a joint estate, with a chance of taking the whole by survivor-ship. If personal property is given to a wife and her heirs, the husband takes the absolute estate, jure mariti, and of course he can take no loss if he be included in the gift; Robertson v. Fleming, 4 Jones’ Eq. Rep. 387.

We concur in the opinion that the plaintiff was not entitled •to recover.

Per Curiam,

Judgment affirmed.