Sanderford v. Moore, 54 N.C. 206, 1 Jones Eq. 206 (1854)

June 1854 · Supreme Court of North Carolina

54 N.C. 206, 1 Jones Eq. 206

GEO. A. SANDERFORD AND WIFE AND OTHERS against JOHN C. MOORE.

Where an estate, in slaves, is given to A., but, if he should die without leaving a lawful child, then to his sisters, B. and C., and A. died without leaving a child, but having sold the whole estate in the property to D., in a . suit against D., brought by the sisters, (the sale to D. being admitted in the pleadings,) it was held, not necessary, that the personal representative, A., should be made a party.

Where, in the above case, it appeared that D., the purchaser, had notice of the sisters’ contingent interest, but removed the slav.es out of the State, and sold them, in the lifetime of A. and his sisters, and the property never having been again within the jurisdiction of a Court of law of this State, it was held, that the plaintiffs, were entitled to their remedy in Equity, the defendant.being looked upon as the legal owner, at the time he removed them, and the plaintiff’s contingent rights having become absolute, only after that event.

Cause removed by consent 'from the Court of Equity of Wake County at the Spring Term, 18M.

Mary Dean, by her last will and testament, bequeathed amongst other devises and bequest, as follows: “ I give and bequeath to my grandson, Marcellus Hilliard, one negro woman, Nelly, and her child Hugh White, but in the event of the said Marcellus departing this life without lawful child, the said negoes, Nelly and Hugh White, are to be equally divid-between Martha H. Sanderford and Frances A. Hilliard, to them and their heirs forever.” Mary Dean the testatrix, died on the year 1849, and James L. Terrell qualified as her Executor, who delivered the slaves Nelly and Hugh White to the legatee, Marcellus.

Frances A. Hilliard died intestate, in the lifetime of her ' sister Martha A. Sanderford and her brother Marcellus, without having been married, leaving Martha and Marcellus her next of kin. Shortly after the death of Frances, her brother Marcellus died intestate, without leaving any “ lawful child,” having after her death sold and conveyed to the defendant, John C. Moore, the two slaves, Nelly and Hugh White — the purchaser having full knowledge, (as is established by the testimony in the case) of Martha’s and Frances’ contingent interests. Within ten days after this purchase, by Moore, he carried the slaves out of the State, to the City of Bichmond, and there sold them, and it does not appear that the purchasers were known to the plaintiffs, or that the slaves were ever again within the limits of this State.

' George A. Sanderford and his wife Martha, and John L. Terrell administrator of Frances A. Hilliard, are the plaintiffs. The prayer of the bill is, that the defendant account for the value of the slaves, Nelly and Hugh White, and for general relief.

The defendant objects to the plaintiffs’ right to recover upon the ground that the personal representative of Marcellus Hilliard is not a party to the bill, and he further contends that the plaintiffs’ claim being a legal one, there was no ground for going into a Court of Equity. There was replication to the answer, commissions issued, and proofs taken, and tbe cause, being set for bearing, was removed by consent to this Court.

Moore ami Miller for plaintiffs.

G. W. Maywood for tbe defendant.

PearsoN, J.

Tbe estate of Marcellus was determinable, being subject to a limitation over to bis sisters, Martha and Prances, in tbe event of bis death without leaving a child living at tbe time of bis death.

Frances died leaving Marcellus and Martha her next of bin. Marcellus sold tbe slaves to tbe defendant, who bad notice of tbe limitation over: The defendant carried the slaves to Richmond and sold them: afterwards, Marcellus died without a child. Tbe object of tbe bill is to follow tbe fund in tbe bands of tbe defendant. Tbe right to do so is settled, Hales v. Harrison, 7 Ired. Eq. 299. Cheshire v. Cheshire, 2 Ired. Eq. 569.

What part of tbe fund are tbe plaintiffs entitled to? Martha, under tbe limitation over, is entitled to one-half. The defendant Terrel, the administrator of Frances, is entitled to the legal estate in tbe other half; but as be makes no suggestion of there being creditors of bis intestate, Martha, as one of tbe next of kin, is entitled to one half of this share, so she is entitled to three-fourths of tbe fund.

At tbe time he sold to tbe defendant, Marcellus was entitled not only to tbe determinable estate, but also to one half of tbe share of bis sister Frances. So the defendant as as-signee of Marcellus, is entitled to one-fourth of the fund.

The defendant insists, that the plaintiff cannot have a decree, because tbe personal representative of Marcellus is not a party.

If the plaintiffs sought to recover tbe whole fund , and denied tbe fact of tbe assignment by Marcellus to tbe defendant, there would be some ground for tbe objection; but as they admit the assignment, and only ask for three-fourtbs of the fund — -being content to leave the other fourth in the hands of the defendant, there is no ground for the objection, because, by the assignment, the interest of Marcelina, as one of the next of kin of Frances, passed to the defendant — consequently, at his death, there was nothing to pass to his personal representative. "Why, then, should he be a party ? The only object for making him a party would be, to give him an opportunity to deny the. fact of the assignment — hut as to that, the parties are agreed.

The defendant also insists, that the plaintiffs ought to have sued at law, and have no equity against him. If the slaves could be found, an action at law would lie, because the plaintiffs are now the legal owners ; but at the time the defendant took the slaves to Richmond, and sold them, he was the legal ovoner, and the plaintiffs had only a future contingent interest. So, as against the defendant, their only remedy is to follow the fund.

The plaintiffs are entitled to a decree for three-fourths of the fund, after deducting a reasonable allowance for the expense of carrying the slaves to Richmond, and making the sale. As their equity is to follow the fund, they must be content with it, and have no right to hold the defendant responsible for the actual value; that would be treating him as a wrong-doer: Whereas, the ground of the bill is, to treat him as a trustee of a fund, in which the plaintiffs have an interest.

Per Curiam. Decree accordingly.