Graham v. Graham's administrators, 9 N.C. 322, 2 Hawks 322 (1823)

June 1823 · Supreme Court of North Carolina

9 N.C. 322, 2 Hawks 322

Mary Graham v. Thomas Graham’s administrators.

From Moore.

A deed to M. G. for a negro in tliese words, “ have given and granted' at my death, and by these presents, at that time, do give and grant to the said M. G. my negro girl, &c.” was held to resemble the common ease of conveyance by deed of personal property for life, remainder to another, after the determination of the life estate ; and the remainder man took nothing.

Detinue.'— On the sixteenth of May, 1817, the Defendant’s intestate executed an instrument of writing in the following words.:

“ To all persons to whom these presents shall come, I, Thomas Gra- “ ham, of the County of Moore, and State of North-Carolina, send “ greeting: Know ye, that X the said Thomas Graham, for and in consideration of the natural love and affection which I bear and have to “ my niece Mary Graham, daughter to Robert Graham, and for divers “ other good causes and considerations hereunto, have given and granted at my death, and by these presents at that time do give and “ grant te the said Mary Graham, my negro girl named Sarah, with her “increase, to have, hold, and enjoy, the said negro girl unto the said “Mary Graham, her executors, administrators, and assigns, forever, “ clear and free against any person or persons claiming any right, titlej i‘ or interest to said girl, I, the said Thomas Graham shall, and will “ warrant and forever defend by these presents. In witness whereof, “ I the said Thomas Graham do hereunto set my hand and seal this “16th of May, 1817.”

Signed, THOMAS GRAHAM, (L. S.)

Thomas Graham died intestate, arid the Defendants took into their possession the negro girl named in the bill of sale as part of the estate of their intestate. The present action was brought to recover the negro, and came before this Court on the appeal of the Plaintiif from the judgment rendered below.

Ruffin, for the Plaintiff,

referred to the case of Boe v. Polgreen — (3. Black.)

Seawell, contra,

insisted on the rule of law that a remainder in personal estate cannot be created by deed, and adverted to the reasons of the rule, the nature of such • property, and its liability to destruction, and the policy of the law not to fetter personal estate — Wiledon v. El-kinglon, (Florw. Com. 520-1— Cutler v. Spiller’s Ex’rs.') decided in this Court. This deed was not effectual in law to pass the property in the slave, because it does not profess, then to pass any estate with a reservation to the grantor, but is to commence in operation after his death.

The properly could not pass by way of gift, because from the definition of a gift, the donor renounces, and the donee immediately acquires title — (2 Blackst. Com. 441.)

If the paper be considered as a testamentary disposition, then it should have been proved as such, and the executor’s or administrator’s assent obtained before the suit.

The case of Roe and Polgreen does not conflict with these principles.

Curia adv. wit.

Hall, Judge.

Originally, terms for years and personal chattels, could not by deed, be limited over by way of remainder after a life estate — (Oro. Elia. 216 — 1 Co. 153 — Chedington’s case, Dyer 253 — Shep. Touch. 332.) And however the law may be altered as to chattels real— (Shep. Touch. 274 — Bac. Jlbl. Remainder a.” 1st Jim. from the 6th London Ed. — 1 Burr. 282 — 1 Hen. 111. 540) as to personal chattels it remains the same, unless such limitations over is created by will or by way of trust I am not aware of any case that can be shewn to the contrary.

In the present case, no express estate for life is created by the deed to Mary Graham, with a limitation of a re - mainder over afterwards, yet the property in the negro is conveyed and granted at the death of the grantor, which is the same thing. If the grant is good, the grant- or has a life estate, and the remainder, at Ms death. Tests in the grantee, the present Plaintiff; so that it appears to me to resemble the common case of conveyance by deed, of personal property for- life, remainder to another after the expiration of a life estate,

I think it a hard case that this species of property cannot be conveyed in a mode apparently so simple, when the reason upon which the rule was originally founded is no more, asid cannot but regret that decisions upon the subject had not been made more conformable to the nature of this kind of property, and the convenience of those who possessed it. But as it is my duty to expound and not make the law, I feel myself bound to give judgment for the Defendant.

Tavxor, Chief-Justice, and Henderson, Judge, con • curred.