Miller v. London, 60 N.C. 81, 1 Win. 81 (1864)

Dec. 1864 · Supreme Court of North Carolina

60 N.C. 81, 1 Win. 81

THOMAS C. MILLER Executor of FREDERICK J. HILL and others vs. HENYY A. LONDON and others.

Testator bequeaths s'aves to A, B and C. Ho directs A, B and 0, to purchase a tract of .land, on which the slaves are to live, and to cultivate it. The executors are directed 1o pay to A, &c., $500_for the purpose of stockin'* the land.

This is a quasi emancipation, and is void,- independently of the act of 1860, ch. 87. -

Testator gives to his wife all his slaves except fhoSe bequeathed as above stated, and concludes his provision for her by giving her all his “ property .and estate of every kind and description” “ which is not hereinbe-fore, or hereinafter excepted or disposed of." This is-a special residue, ami the shtve3 intended to be given to A, &c., and the legacies intended for .their benefit belong to tbe next of kin of the testator, (his widow having died) after payment of his debts ; for the 'payment of which they qonslitnte the: primary fund.

The cases of Lea vs. Brown, 3 Jones Eq., 141, Kirkpatrick vs. Rogers, 7 Ire., Eq. 44, and Swann vs. Swann, 5 Jones Eq., 299, cited and approved. . . »

This was a suit removed from the Court of Equity for New Hanover county to this Court for trial. •

Dr. Frederick J. Hill died in the year 1861, having made his will, which has been proved by his executors, of whom the plaintiff,- Thomas C Miller, is one. The will contains the following disposition: “ I will, devise, bequeath and direct that .my executrix and executors, hereinafter named,' purchase in the county of Chatham, North Carolina, one hundred aeres of land, the location of which I desire my friend, Henry Á. London', of Pitts-borouglr, to1 make, and to be paid for out of my estate. And I give, devise and bequeath the said one hupdred acres to my worthy friends, Henry ’A. London, Frederick S. Davis, William E. Boudinot and Thomas 0. Miller, them and their heirs and assigns ; and J also give, devise and bequeath unto my said friends, &c., my faithful and trusty servant, Charles, and his wife, Louisa, and his son, Jim ; and.I hereby direct that my executrix and executors pay over to my said friends, &c., out of my estate, the sum of five hundred dollars, tó be laid out by them in stocking said farm of one hundred, acres, and that Charles and his wile, Louisa, and their son, Jim, live -on said farm apd cultivate it.”

Another clause of his will is as follows : “ 1 also give, &c., to my wile all of my- negroes in fee, except Charles and his wife, Louisa, and their son, Jim, heroin before disposed ofand he concludes the provision made for his wife by this clause : “ and finally I give, &c.f unto my said wife all and every kind and description of property or estate, real, personal or mixed of every kind whatever, of which I may die seized or possessed of or entitled to, and whieh is not hereinbefore, or hereinafter, excepted or disposed of. ’ ’

The hill was filed for the purpose of having the advice of the Court on the parts of the will above set out. The answers admitted tbe facts stated in the bill, and the cause was set for hearing on the-bill and answers.

Moore for the plaintiffe.

No counsel for defendants in this Court.

Battle, J.

This bill was filed by the .executors of tie-late Dr. Frederick J. Hill, for the 'purpose of obtaining the adrice and direction of the Court as to the true meaning and effect of certain clauses of his will. The case has been fairly presented to us by the plaintiffs’ counsel, and we are satisfied that the construction contended for by him is correct.

The bequest in favor of the slaves, mentioned in the pleadings, was manifestly for their quasi emancipation, without being carried from the State, and is, therefor», void as being against the often declared policy of the law. See,, among other cases, Lea vs. Brown, 3 Jones’ Eq., 141. The residuary clause an- favor of the testator’s wife is shown, by the same case of Lea vs. Brown, to be. a special one,, which does not include the slaves nor the legacies intended to be given for their benefit. The effect of this is that the said slaves, and the legacies intended for them, are undisposed of,- and go to the next of kin ; forming, however, the primary- fund for the payment of debts and general legacies.' Kirkpatrick vs. Rogers, 7 Ire. Eq., 44, Swann vs. Swann, 5 Jones’ Eq., 299.

As the land directed to be provided for the slaves, ean not be appropriated for those purposes, it cannot he purchased at all; and this disposes of all the questions asked in relation to it. So far as the money, with which the purchase was directed to he made, as well as the money witb which it was directed to be stocked, is concerned, it is the same as if that clause was stricken from the will.

The act of 1860, ch. 39, which prohibits the emancipation of slaves by will, need hot be' invoked in aid of this construction, which we have put upon the will, as the re-suit will be the same'withouc it.

A decree may be drawn in'accordance with this opinion.