Robertson v. Fleming, 57 N.C. 387, 4 Jones Eq. 387 (1859)

June 1859 · Supreme Court of North Carolina

57 N.C. 387, 4 Jones Eq. 387

EVERETT P. ROBERTSON against JOHN M. FLEMING and others.

(Construction of a will, depending on its peculiar phraseology.)

It is well settled that not only a vested interest, but a contingent remainder, or contingent executory bequest, or a future contingent trust, where the person is certain, is transmissible by descent in the case of realty, and devolves upon the personal representative in the case of personalty.

Cause removed from the County of "Wake.

Everett Pearce, in the year 1807, bequeathed as follows:— “I lend to my beloved daughter, Patience Stevens, wife of Jacob Stevens, during the natural life of the said Patience, Jacob, or either of them, eight negroes, viz: Jerry, &c., (naming seven others) * * (then devising some land); and should my said wife, Rachel, die before the death of the said Jacob Stevens or Patience, that then, and in that case, I lend to the said Jacob and Patience, or the survivor of them, during the natural life of them, or either of them, the whole of the aforesaid property.

Item. I give and bequeath unto the heirs lawfully begotten, at present, or hereafter, of my daughter Patience, all and singular, the aforesaid lands; but, as aforesaid, to be by them possessed, from and immediately after the death of those to whom the same are lent as aforesaid; to them and their heirs forever ; and the whole of the aforesaid negroes and their in-increase, to be by them possessed as aforesaid, and also, the whole of my estate not disposed of otherwise by this will, to be by them possessed as aforesaid.”

By a previous clause of the will, the testator had loaned to his wife, Rachel, during her natural life, the following slaves, viz: Sam, &c., (naming seven others.)

Patience Stevens had a number of children by her husband, the said Jacob, among whom was a daughter by the name of Joanna, who intermarried with Temple Robertson, in the year 1830, and died in 1831, having had one child, the plaintiff, Everett P. Robertson.

Temple Robertson took out letters of administration on the estate of his wife in 1838.

Rachel, the widow of the testator, Everett Pearce, died in 1825, leaving Jacob and Patience surviving her; Jacob died in 1830, and Patience in 1842.

A share of the slaves which had come into the hands of Jacob and Patience Stevens, after their deaths, came to the hands of Temple Robertson, as being the part coming to Joanna.

The plaintiff’s bill alleges that by the will there is a limitation over to him, and that these slaves came to defendant’s hands as the trustee for the plaintiff; that the said Temple frequently acknowledged the rights of the plaintiff to all the said slaves, and delivered several of them (naming them) to him; that the said Temple married a second time, and issue was born of this marriage, to wit: the defendants, Charles and John; that the said Temple Robertson died in 1856, and the defendant Fleming, having administered on the estate, took possession in that character of all the slaves not theretofore delivered to plaintiff, by his father. The plaintiff claims that he is solely entitled to the slaves which came to the hands of his father through kis wife, Joanna, and complains that the widow, the the defendant, Nancy, and her two children, Charles and John, are insisting on a share in the same, and that the said Fleming refuses, to, acknowledge the plaintiffs sole claim, but alleges that he holds the said slaves as a part of the estate of his intestate, and means to dispose of the same, as snch, according to the statute of distributions. The prayer is that the administrator deliver over the slaves not delivered to him, and account for their hires.

There was a demurrer, in which plaintiff joined, and the cause sent up by consent.

Miller, Rogers and Lewis, for the plaintiff.

Moore, Buslee, and K. P. Battle, for the defendants.

Peabson, C. J.

It may be, there is some force in the suggestion, that the words “ begotten at present or hereafter,” exclude the idea, that “ heirs” was used in its technical sense, for “ nemo est hceres viwentisand fix its meaning, so as to vest an interest in the children of Patience, subject to a life-estate of Patience and Jacob Stevens in one set of the negroes, and to the life-estate of Rachel Pearce, and a contingent life-estate of said Patience and Jacob in the other set. But it is not necessary to decide the question ; for, in neither view of it, is the plaintiff entitled to the slaves in controversy, or any part of them, in the manner set forth in the bill, and consequently the clemwrer must be sustained, and the bill dismissed.

If the word “ heirs” is taken as a word of limitation, so as to vest the absolute estate in Patience Stevens, under the rule in Shelley’s case, the claim of the plaintiff is admitted to be unfounded, for the title would then have passed presently to Jacob, the husband, j-ure mariiA, as to one set of the slaves; as to the other set, it would have passed, on the death of Rachel in 1825, to him in the-same way. If the word “heirs” is taken as a word of purchase, it would include any child of Patience, so as to give a vested interest, subject to the life-estate; consequently, the share of Joanna, who was a child of Patience, born in the life-time of Rachel, at her death devolved upon her personal representative; and there is no ground upon which the plaintiff, who is the child of Joanna, can claim that sljare.. It' is well settled that .not only a vested interest, such as that given to the children of Patience Stevens, but a contingent remainder, or contingent executory bequest, or a future contingent trust, where the person is certain, is transmissible by descent, in case of realty, and devolves upon the personal representative in case of personalty. In this case, at the birth of each child of Patience Stevens, a share vested in it, and was not divested by death. Sanderlin v. Deford, 2 Jones’ 74.

Per Curiam, Dismissed.