Ingrams v. Terry, 9 N.C. 122, 2 Hawks 122 (1822)

June 1822 · Supreme Court of North Carolina

9 N.C. 122, 2 Hawks 122

IN EQUITY.

Ingrams v. Terry et als.

From Richmond.

When a bequest of a negro woman is made to A, and of her issue, if she’should ever have any, to R, the assent of the executor to the legacy to A. is an assent to the legacy to B. also,

if a bill be brought by 15. against A, to compel the delivery of such issue to B, the hill will be dismissed,

in the case put, A. and B. constitute but one owner, and, the executor is not bound to assent to the legacy unless he gets bond for the value of the -alíale interest.

The bill set forth, that the. Complainants, Brasilia Ingram and Hannah Ingram, were the grand-children of one William Terry, who, on the 20th of March, 1805, made and published his lest will and testament, containing, among other' clauses, the following: “ I give and bequeath to my son Matthew Terry, two negroes, viz, Nell and Boston, to him and his heirs forever; and should the said negro wench Neil have any children, it is my desire that they be given to Benjamin Ingram’s two youngest daughters, Hannah and Brasilia.” That the executors to said will assented to the legacy of the negro woman Nell to Matthew Terry, who accordingly took her into his possession $ that after the executors had assented as above stated, Nell liad issue a male, child, and that these Complainants had demanded of one of the Defendants, Matthew Terry, the possession of such child, and had also applied to the executors for their assent to the legacy of Nell’s children to these Complainants ; that sue!) assent had been refused, and that Matthew Terry refused to deliver the possession of Nell’s child io the Complainants. To this bill there was a demurrer for want of Equity in the Court below, which was sustained, and the bill dismissed. Complainants appealed.

Hemperson, Judge.

I cannot but view this as a bill brought «pon a mere legal title. When the executors assented to the legacy of the mother, they thereby assented io the bequest of the issue, and they lost all control over the property as executors. Tha claim lost its le-gatory character, and even view ing this as a residuary interest, which 1 think it very much resembles, as far as respects the present question, the revolt will be the came p for I cannot think that the old law upon the subject, is ai all. altered by tiao acts of one Assembly, requiring legatees to give refunding bonds. Those who argue in favor of the alteration, contend, that a legatee for life, or other particular interest, can compel an executor to ascent to his legacy, upon giving bond for the value of the particular interest only. I would admit that if the law were, so, it would follow. Bat it appears to sue that the executor is not bound to assent to a legacy, unless he gets bond for the v aloe of the whole interest — that all the claimants, both immediate and ulterior, represent but one full owner. Nor do 1 think it reasonable that the law should divest the executor of the possession, and after the determination of the particular estate, throw ok him the burthen of regaining it tbs- the purpose of giving it over to those who have a residuary interest in It

Per Curiam. The bill most *<«• dismissed.