Foulkes v. Foulkes, 55 N.C. 260, 2 Jones Eq. 260 (1855)

Dec. 1855 · Supreme Court of North Carolina

55 N.C. 260, 2 Jones Eq. 260

MARY B. FOULKES against JAMES F. FOULKES.

A legacy is given upon condition that a certain sum of money due the legatee, is not collected by him after the testator’s death; the money is, however, collected before the testator’s death; the executrix, notwithstanding this, assents to the legacy, and gives it over to the legatee; she cannot sustain a bill to have the property restored to her, upon the ground, that when she assented to the legacy, she was ignorant that she was herself entitled to a life-estate in, that property, — no fraud or unfair means to obtain her assent being alleged..

Cause removed from the Court of Equity of Guilford County.

Dr. John A. Foulkes made his last will and testament several years before his death, which occurred in the year 1853, and appointed the plaintiff and anSther to act as executors;, hut the former only qualified.

By the fifth clause of his will, he gives to the plaintiff all his personal property, not specifically disposed of, during her life, with the power of disposing of one-third part of his personal estate (slaves excepted) between his two children.

The seventh clause of his will is as follows : “ I give, devise and bequeath to my son, James F. Eoulkes, two slaves, Andrew and Milton, which are to go into his possession upon his arrival at full age. My reason for this gift I wish explained: I do not consider the two slaves properly mine. My father wished to give the boy Milton, to my son James, but I took the deed in my own name, and his grandfather, Patrick, gave to him a boy, Jack, which I sold and received the money. In place of Jack, I give to James the boy Andrew. But should my son make my estate pay on account of the price of Jack, then I direct and will that Andrew shall not pass to James, and his part of my estate shall answer for the price of Jack.”

At the time of making this will, James was under age, but became of age before his father died, and then received from his father six hundred dollars, for which he gave the following receipt:

“Received of my father, John A. Eoulkes, six hundred dollars, in full payment for a boy Jack, sold by my father; said boy was given me by my grandfather, James Patrick, dec’d. Signed, James E. Eoulkes.

Oct. 28, 1852.”

Notwithstanding this payment and receipt, the executrix, the plaintiff, assented to James’ legacy of the slave Andrew, by hiring him from the said James for a year, and otherwise by treating him as his property.

The bill alleges that plaintiff made this assent in total ignorance of her right; that she did not know she had a right for life in this slave, until a short time before the filing of this bill, when she was advised by counsel that the receiving the money for Jack deprived defendant of his right to Andrew ; she made known to the defendant that she had received this information, whereupon he got angry, and taking the slave away from her, carried him to the town of Fayetteville where he lived, and has kept him ever since. She insists that by the will of hei late lmsband, the plaintiff is entitled to a life-pro-qierty in Andrew, or in the money paid £or Jack, if the defendant insists on keeping Andrew, and that the defendant ought tó be put to his election as to that matter; that her act of hiring the slave Andrew, is all the assent she ever gave to the legacy; she admits, however, that she intended to assent to it, but says that she was, at that time, “ wholly ignorant of any interest she had or might have, in law or equity, to the boy Andrew,” and fully believed that the defendant was entitled •to Andrew, notwithstanding he had collected the money for Jack.

The prayer is, that the defendant be compelled to surrender Andrew to her, and account for his hire; or that he be compelled to elect between the sum of six hundred dollars and the slave; and if he prefers taking the latter, that then he shall pay the plaintiff the sum of $600.

There is a prayer also for general relief.

The answer of defendant admits the material allegations in the bill, but says that his father owed him about $1,500 or $1,600 when this sum of $600 waspaid; and notwithstanding the receipt which he gave, he says it was understood that the balance, which was for interest, was still to be paid; and that his father told him, shortly before his death, that he had made a provision in his will which he thought would be satisfactory of that claim. He understood him to refer to this bequest of Andrew, and that it was his decided wish that it should stand in lieu of the remainder due as interest of the money collected for Jack.

Replication was taken, and the cause set down for hearing on the bill, answer, and exhibit filed, and sent to this Court.

Morehead, for plaintiff.

Fowls, for defendant.

PeabsoN, J.

The bequest of the slave Andrew to the defendant, is subject to an express condition: “ But should my son make my estate pay for the price of Jack, then I direct that Andrew shall not pass to J ames,” (his son.) In other words: the bequest of this slave to the defendant, is to be void if he exacts from the estate the price of Jack. It is true ho did not, in the words of the condition, exact the price of Jack from the estate of the testator, but he exacted it from the testator in his life-time, and, without reference to the learning in regard to ademption and satiffaction, or revocation, we are strongly inclined to the oinnion that this was as much a breach of the condition as if he had waited until after the death of the testator, and consequently that the bequest was defeated by force of an express condition. But however this may be, the plaintiff, by her assent to the legacy, vested the legal title in the defendant; and the question is, does the bill disclose.any ground upon which she can ask this Court to undo what she has done, so as to relieve her from the legal effect of her assent?

The bill does not allege that she was ignorant of the- provisions of tire will; indeed, being executrix, that allegation was hardly open; there is no allegation that she did not know the fact that the testator had paid his son the sum of $600 for the price of Jack; nor is there an allegation that the defendant practiced any fraud, made any misrepresentations, or by artifice took her by surprise, so as to induce her to assent to the legacy; on the contrary, the plaintiff’s equity is put on the isolated ground, that when she assented to the legacy, “ she was wholly ignorant of any interest she had, or might have? in law or equity, in the boy Andrew.”

It is settled, that mere ignorance 'of law, unless there be some fraud or circumvention, is not a ground for relief in equity, whereby to set aside conveyances, or avoid tire legal effect of acts which have been done. The equity to sv/pply defeats i/n conveyances, the result of ignorance or mistake, so as to give effect to the intention of the parties, stands on a different footing; for instance ;■ to remedy a defective execution of a power of appointment, or supply the word “ heirs,” when the intention was to pass a fee simple, or to give effect to the conveyance of a copy-hold estate when there had been no surrender, and tbe like — all stand on tbe distinction that relief is asked, to ■ carry into effect that which tbe parties intended to do, and not undo that which has been done. McKay v. Simpson, 6 Ire. Eq. 452; Curtis v. Perry, 6 Ves. 745; Hart v. Roper, 6 Ire. Eq. 349; 1 Story’s Eq. 123; Adams’ Eq. 191.

The defendant alleges a counter equity, on the ground that his father did not pay' him the interest which had accrued on the price of Jack. There is no proof in regard to it, and it is not involved in the consideration upon which we think the plaintiff has failed to establish an equity.

Pee Cubiam. Bill dismissed with costs.