Douthett v. Bodenhamer, 57 N.C. 444, 4 Jones Eq. 444 (1859)

Aug. 1859 · Supreme Court of North Carolina

57 N.C. 444, 4 Jones Eq. 444

MAXFIELD DOUTHETT and wife and others, against PHILIP S. BODENHAMER.

A limitation over of slaves by will “ to a daughter and to her children, (should she have any) forever; but should she die without children,” then to another daughter,” &c., is a valid contingent interest, and a Court of Equity! on a proper case being made, will protect it by writ of sequestration, against a fraudulent removal, or sale of the property.

Cause removed from the Court of Equity of Henderson County.

Thomas Brummet, of Greenville District, South Carolina, by a will, properly executed for that purpose, bequeathed, (among other things) as follows: “Third. I will and bequeath to my daughter Letta, the following negroes, to wit: Ann and Eliza, also, Juliet and her two children, Green and Thomas, together with the increase of said negroes, unto my daughter Letta, and to her children, (should she have any) forever; but should she die without children, then, and in that case, the above named negroes willed to Letta, revert back to my daughter, Quintina Douthet, during her life, and at her death, to her children forever.” *

Fourthly. And, for the support and maintenance of my wife, I wish my three negroes, Joe, Adam and Jim, to remain in the hands of my daughter Letta, with whom I desire my wife to live, and the proceeds arising from the labor of said three negroes, Joe, Adam and Jim, to be set apart for the use and benefit of my wife, so long as she lives; and at her death, I will Joe, Adam and Jim, to my daughter Letta, and at her death to her children, if she have any, but should Letta die without children, then I desire that the above named negroes, Joe, Adam and Jim, shall revert back to my daughter, Quintilla Douthet, and at her death, to her children forever.”

Letta, named in the foregoing bequests, and mother, lived together for several years in the State of South Carolina, when the former intermarried with the defendant, Philip S. Bodenhamer, who took possession of the slaves above named, and afterwards, Mrs. Brummett, the widow, having died, the defendant removed to the county of Henderson, in this State.

The bill alleges that the defendant’s wife has not had children, and that there is not much probability of that event; but that Quintina, who is the wife of the plaintiff, Maxfield Douthett, has now living, several children, who are made parties plaintiff with their parents, to this bill. The bill further charges, that the defendant removed two of the slaves to Georgia, and tried to sell them to persons, who were by agreement with him, to carry them to Texas, and that he secretly removed the rest of the said slaves from South Carolina, and has endeavored to sell them in absolute right; and plaintiffs aver -that there is great danger of their contingency being defeated by the unlawful conduct of the defendant, Bodenhamer. The prayer is for a sequestration to secure the slaves from being carried off, or sold so as to defeat plaintiffs’ rights.

The defendant answered, denying that he had tried to- sell all the sales in a distant State, but admitted that he had- endeavered to sell some of them in the State of Georgia, with a view of their being carried beyond the jurisdiction of any court which could protect the interest of the plaintiffs. He stated that the proceeds of the slaves sold, had been invested in a tract of land which he held subject to the proper construction of the will. He further answered, denying the assertion that there was no probability of his wife’s having a child or children, but said he hoped and believed she would, but, whether so or not, he insisted that plaintiffs’ limitation over, was too remote to be valid in law. The cause being set for hearing on the bill and answer, was sent to this Court.

Roberts, for the plaintiff.

N. W. Woodfin, J. W. Woodfin and Merrimcm, for the defendant.

Peajjson, C. J.

The question made as to the construction of the will of Thomas Brummett, admits of no* doubt whatever. The plaintiffs have an interest contingent, and depending upon the death of the wife of the defendant, without having a child, and however “the chances” may he, they have such an interest as will be protected by this Court.

It will be declared to be the opinion of this Court, that the limitation over to the plaintiffs in the will of Thomas Brummett is not too remote, and entitles the plaintiffs as executory legatees to have the property secured. A decree will be entered according to this declaration, and the agreement of the parties, in respect to the price of two slaves invested in land, to be held according to the limitations of the will.

Per Curiam, Decree accordingly.