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, “ 1-give to my daughter, Susannah, four slaves, Darned &c., to her and her heirs — Provid 'd, nevertheless, if the said Susannah dio childless, then it is my desire that my son Aaron remove back to this country, and to have them, but not- to take them to any other part of the country,” do riot import a condition that Aaron shall return to this country.

The case of Reeves vs. Oraigc, 1 Winston, 203, cite! and distinguished.

’This was an action of trover for slaves, tried before FRENCH, J., at Stanly Superior Court, Fall Term, 186ÍL There was a verdict for the defendant, by the direction of the Judge. The plaintiff appealed. t

Edward Almond, of Stanly county, by his 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 my beloved son, Aaron Almond, shall remove back to this country, and to have them, hut not to' take them to any other part of the country.” The testator gave legacies to other sons and daughter's, 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 my property be sold and the proceeds — ;-- divided among my children, as follows, &e.

At the time of tire 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 ia possession of the slaves given to Susannah as above recited, claiming them as the purchaser from Aaron.

Darg'an and M. Battle for the plaintiff.

Moore for the defendant,

P15ARsojr, C. J.

We ’concur with Hjs 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 tbe expression of an earnest wish-, in respect to what he supposed would benefit the slaves, without impairing th# 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 property, as a con-dihlon, 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 th# other hand, it is reasonable to suppose that the testator, baring a decided wish on the subject, should recommend and ask his son to come back to this country and keep the «laves here, should his daughter die. ehildless ; on. which event the negroes ate to belong to the son.

2: The severest test that a condition is intended, is a provision by whioh 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, as-appears by the will, who lived in this country ; and if Aaron.was not to have the slaves, should Susannah die childless, unless he removed^baclc 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 #ach of them as will take them on condition that they are not to be taken out of the country " — so as to leave no doubt that it was his primary intention that. the. slaves «hould 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—besides 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 «imply expressing a wish.

There is no error. Judgment affirmed.