Harris v. Hearne, 60 N.C. 92, 1 Win. 92 (1864)

Dec. 1864 · Supreme Court of North Carolina

60 N.C. 92, 1 Win. 92

RICHARD HARRIS, ADM’R., &C, vs. EBEN HEARNE.

These words in a will, “ I give to my daughter, Susannah, four slaves, named &c., to her and her heirs — Providad, nevertheless, if the said Susannah die childless, thon it is my desire that my son Aaron remove • _ hack to this country, and to have them, but not to take thorn to any other part of the country,” do rot import a condition that Aaron shall return to this country.

The case of Reaves vs. Craigs, 1 Winston, 208, c^te i and distinguished.

This was an action of trover for slaves, tried before PRENCir, J., at Stanly Superior Court, Fall Term, 1863. There was a verdict for the defendant, by the direction of the' Judge. The plaintiff appealed.

Edward Almond, of Stanly county, by bis will, gave to his “daughter, Susannah four slaves, named &c., to her and the heirs of" her body “ provided, nevertheless, that if the said Susannah shall die childless, then and in that case, it is my desire that xny beloved son,'Aaron Almond, shall remove back to this country, and to have them, but not to take thorn to any other part of the country.” The testator gave legacies to other sons and daughters, and to the children of a-deceased daughter. There was no gift over of the four slaves in case Aaron did not return to this country, or of his carrying the slaves out of this country. The will contained this clause — “ I will that the remainder of ray property be sold and the proceeds-. divided among my. children, as follows, &e.

'At the time of the making of- the will Aaron Almond .lived in Tennessee, and he has never been in Stanly county since. The plaintiff is the Administrator with the will annexed of the testator. The defendant is in possession of the slaves given to Susannah as above re- . cited, claiming them as the purchaser fr^m Aaron.

Dargan and iü. Battle fot the plaintiff.

Moore for the defendant. ’

PearsoN, C. J.

We concur with His Honor in the ..opinion, that the executory bequest to Aaron Almond of the slaves, in the event 'that the first taker, Susannah Almond, should die childless, on the happening of the event, vested absolutely in Aaron, and was not defeated by the 'fact “ that he did not remove back to ,this: country.”

The wish of the testator that, “ should his daughter die-childless, his son should remove back to this country’and have them, (the 'slaves) -but not to take them to any other part of the country,” does not have the effect of a condition precedent to the limitation, over to him, -whereby it was to be defeated ; but must be considered simply as the expression of an earnest wish, in respect to what he supposed would benefit the slaves, without impairing the right of property, which he intended should vest in'his son. In the language-of the books, these words are “pre-catory ’ ’ not ‘: mandatory. ” ’.' • <•’

• We are led to this conclusion by several considerations-, which it"is not needful to elaborate much at large.

1. Such a restriction on the right of pro-pprty, as a con-* dition, is impracticable, and incompatible with the nature of personal property.. This must have been known to the testator. So it is unreasonable to suppose that he intended to impose a condition .and meant that his son- should not have the slaves, unless he complied with it.- On the other hand,^ it is reasonable to suppose that the testator, having a decided wish on tb@ subject, should recommend and ask his son to come back to this country and keep the slaves here, should his daughter die childless ; on which event the negroes are to belong to the son.

2. The severest test that a condition is intended, is a provision by which it is to be enforced ; as by making a limitation over to some one else, on breach of the condition. The testator had other children and grandchildren, »b appears by the will, who lived in this country ; and' if Aaron wa* not to have the slaves, should Susannah-die childless, untess he removed.back to this country,, and the testator meant to insist on it as*a condition, he would have added a provision — “ If Aaron does not remove back to this country, then the slaves are to belong to my son, Edmond, or to the children of my daughter, Polly, or such of them as will take them on condition that they are not to be taken out of the country ” — so as to lea?e no doubt that it was his primary intention that the slaves should not be taken out of the country.

The absence of a limitation over, makes a broad distinction between this case, and Reeves vs. Craige, 1 Winston, 208—bosides the fact, that in that case, direct words of condition are used “but if Mary is dead or does not release, I give the land to my children" — and not words simply expressing a wish.

There is no error; Judgment affirmed.