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 bcquoaths stives trt A, B and 0. Ho directs A, B and C, to purchase a tract of land, on which thes’avus are. to live, and to cnlti-vato it. The executors are diriered to pay to- A, &c., §500 for the purpose of stocking the land.

This is a quasi emancipation, and is void, independently of the act of 1860, ch. 37.

Testator gives to his wife all his slaves except those 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, and the slaves intended to be given to A, &c., and the legacies intended for their benefit belong to the next of kin of the testator, (his widow having died) after payment of his debts; for the payment of which they constitute 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 executol-g, of whom the plaintiff, Thomas C. Miller, is one. The •will contains the following disposition : “ I will, "devise, bequeath • anti direct that my executrix and executors, hereinafter named, purchase in the county of Chatham, North Carolina, one hundred acres of land, the location of which I desire "my friend, Henry A. London, of Pitts-borough, to make, and to be paid for out of my estate. ’And I give, devise and bequeath the said one hundred acres to my worthy friends, Henry A. London, Frederick S. Davis,- William E. Boudinot and Thomas 0. Miller, them and their heirs and assigns j and 1 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 es-, tate, the sum of five hundred dollars, to be laid out by them in stocking said farm, of one hundred acres, and that Charles and Iris wife, Louisa, and their son, Jim, lire on said farm and cultivate it." *'

Another clause ófhis will is as follows : I also give, <$rc., to my wife all of my h eg roes in /be, oxcqpt Charles and his wife,.'Louisa, and fheir son, Jim, herein before disposed of ;’v and he concludes ¡he provision made for his wife by this clause : “ and- finally 1 give, &v , unto my said wife all amt every kind and description of,property or estate, real, personal or mixed of every hind whatever, of which I may die 'seined or possessed of or entitled to, and which is not hereinbefore, or hereinafter, excepted or disposed uf. ’ ’ ■ ,,

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 the facts stated in the bill, and th« oatEse was set for hearing on the bill and answers.

Moore for the plaintiffs.

No counsel for defendants in this Court.

Battle, J.

This bill was filed by the «executors of the láte Dr. Frederick J. Hill, for the purpose of obtaining the advice 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, therefore* void as being against the often declared policy of‘the law. See, an\ong other cases, Lea vs. Brown, 8 Jones’ Eq., 141. The residuary clause in 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 thd 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, can not be appropriated for those purposes, it cannot be 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 be made, as well as the money with which it was,directed to be stocked,, is concerned, it is the same as if that clause was stricken from the trill.

The'act of 1860, ch. 39, which prohibits the emaneipation of slaves- by will, need not be. invoked in aid of this-eonstruction, which we have put upon the will, as the result will be the same without it¡. „

A decree may be df&wn in accordance with this opinion.