20 N.C. 77 | N.C. | 1838
The first question presented for our consideration in this case is, what is the proper construction
The clause is in these words: “ I give unto my granddaughter Judith T. Allen, ten negroes, by name Molly, &c., to have and enjoy the said negroes during her natural life, and at her death to be equally divided amongst the heirs of her body, or in case she should die without surviving child or children, that the said negroes, with their increase, shall return to my three grandsons as above named or their heirs.” The three grandsons here referred to are Henry T. Wood-son, Joseph R. Woodson, and Stephen T. Woodson, to each of whom “ and to his heirs forever,” the testator hath in preceding clauses of his will bequeathed sundry negroes absolutely, and whom by subsequent clauses he hath constituted his executors and residuary legatees. The Court below held that under, this clause the testator’s granddaughter Judith took the entire property in the slaves bequeathed, subject only to a contingent executory limitation to the testator’s grandsons, in the event that the said- granddaughter should leave no child living at her death. The argument by which this construction is upheld is understood to be this. It is a general principle that where a bequest is made of personalty by words of limitation, which either directly or constructively give an estate-tail in freehold property, such bequest passes the entire interest therein.
It is also an established and well known rule (commonly called the rule in Shelly’s case) that where by the same instrument there is a limitation of a particular estate of freehold to an ancestor, and a limitation of the inheritance to the heir or heirs of the body of such ancestor, as a remainder ex
Although the correctness of the general principles asserted in this argument is not to be questioned, nevertheless we do not adopt the conclusion drawn from them. Before the application of the rule in Shelly’s case it is always proper first to ascertain whether on the true interpretation of the words of the gift there is a limitation of the inheritance in remainder to the heirs or to the heirs of the body of one to whom a precedent freehold is given — such a limitation does exist when the gift is to them in the quality of Iilkts — embracing the same number in succession of objects and conferring the same extent of interest as would be embraced and conferred where the inheritance has been limited to the ancestor. The word “ heirs” is so peculiarly-appropriated to the expressio of the legal idea of a class of persons succeeding by inheritance from one generation to another — that ordinarily in grants and donations of land and other conveyances thereof inter vivos, no other word or set of words is deemed adequate to its expression — and therefore ordinarily a gift in remainder after a life estate in such an instrument will not be understood to be made to any persons as heirs unless the term heirs be expressed. But in devises where
On the other hand, as the law will not entrap men by words incautiously used, if in the limitation of a remainder by any instrument of conveyance, the phrase “ heirs” or “ heirs of the body” be expressed, but it is unequivocally seen ' that the limitation is not made to them in that character, but simply as a number or class of individuals thus attempted to be described ; then the whole force of the phrase is restricted to this designation or description — it shall have the same operation as the words would have of which it is the representative ; there is not in fact a limitation to “ heirs,” and of couz’se there is no room for the application of the rale.
In conducting this preliminary inquiry, however, it is to be borne in mind that all expressions to which the law has attached a definite meaning are to be understood in that sense unless there be clear evidence that a different meaning was intended to be conveyed by them. The words “ heirs of the body” are technical expressions. In limitations of real property they are the most apt and appropriate terms to describe the whole direct line of inheritable successors, and therefore in construing a limitation to “ heirs of the body,” especially in England, where estates-tail or inheritances de-scendible in the direct line only, are recognised; these terms will not be understood in a different or less extensive sense, without unequivocal evidence that they have been used by mistake. This principle obtains in the construction of all conveyances as well by will as by deed, but with this distinction, that in the latter, where greater accuracy of expression is required, the technical sense is controlled with more difficulty than in the former, which are often made without an opportunity of legal advice. It is not necessary for forming an opinion on the bequest before us, that we should determine whether, if it had been a devise of lands and a de
The clause which we have to interpret contains a bequest of personalty only. Now the term “ heirs of the body” in a gift of such property is not an appropriate, much less a technical term. It does not import a succession in the direct line of descents, because by law there is not and never was such a succession in the case of chattels. It must have some other meaning, and therefore in prosecuting the inquiry what is that meaning, so strong a demonstration that the phrase was used as a designation of individuals is not demanded as is indispensable where, as in devises of realj estate, it is attempted to overrule its precise legal signification. Yet if a chattel be bequeathed to one and the heirs of his body, although the latter words are not technically correct as words of limitation, nevertheless as they import an intention of the testator that the thing is so given that, it may be transmitted from and through the legatee to his issue, and as this intent cannot Well be effectuated, unless the whole interest be vested in the legatee ; standing alone it furnishes a clear legal inference of a gift of the whole interest. So when a bequest is made to one for life with remainder to the heirs of his body — inasmuch as in such limitations where the phrase heirs of the body is properly used, the legal operation is the same as in a direct gift to one and the heirs of his body— the law will infer from it, if unexplained, the same intent of a complete gift to the first taker. But when to such a bequest, limitations are added which are inconsistent with, and
Upon the clause before us we think it manifest that by the term “ heirs of the body,” the testator did not contemplate a class of persons to' take by transmission from and through the first donee, in the nature of heirs, but that he did intend a class of individuals to take as original and independent objects of his bounty. And we also think that he has pointed out these individuals with such distinctness as to leave no fair doubt of the persons by him intended. After the gift of the slaves to his granddaughter, which he expressly declares shall be for her life, his words are. “ and at her death to be equally divided between the heirs of her body this division which the testator expressly directs to take place the moment her life interest expires — at her death — is irreconcilable with the supposition of a gift of the entire interest in her. Such a gift in this case would have vested the whole property in the husband, if reduced into possession during coverture; and if not so reduced would at her death— when the equal division is ordered — have passed it to her executor or administrator. This equality of division manifests an intention that the legatees shall take distributively and as purchasers — not in succession, but all at the’same time; that they were regarded by the testator as having personal claims upon his bounty, and were therefore the direct objects of this provision — receiving it through him, and not dependent for its enjoyment on the prudence or favor of others. But when with this evidence we combine that furnished by the immediately succeeding part of the clause, not
The reason for this modified provision is so obvious that we can scarcely doubt about it. An absolute gift to her, might and probably would put it in the power of her husband or of her husband’s creditors to strip her and her offspring of the whole of this provision. He intended it for her benefit as long as she lived, and for the benefit of her chil
Rejecting the interpretation which makes ' the words “ heirs of the body ” words of limitation, and considering them as designating the children of Judith Allen, our next inquiry is, whether under this bequest these children have taken a vested interest in the subject matter of it; or whether the legacy be yet contingent, awaiting the event of the said Judith leaving a child or children living at her death. The counsel for the plaintiff contends, that by the terms of this bequest an immediate interest passed upon the death of the testator to the two children then alive — postponed as to enjoyment until the death of their mother — and defeasible or liable to be divested on the event of her leaving no child living at her death. He further insists, that upon the birth of subsequent children, antecedent to the time of division, this vested legacy opened to take them in, and that upon the death of one of the children, after the death of the testator and before the time of the division, the share of that child passed unto his personal representatives. If the primary position that the bequest to the children is a vested legacy, be well founded, the inferences above stated are correct. Upon the best consideration however which we have been able to give to the case, we are of opinion that the position is not well founded.
The question whether a legacy be vested or contingent, is one almost as much overloaded with decisions as those arising upon the extent and application of the rule in Shelly’s case." In examining this question we shall forbear, as we have done with respect to those arising upon that rule, from attempting to reconcile these decisions with each Other; or where this cannot be done, from examining into their relative claims to our respect; but adopting what all acknowledge to be the true principles of construction, endeavor to apply them to the bequest before us. The first great rule is to follow out what, upon consideration of the whole frame of the will, appears to have been the testator’s purpose. Was it his intention to pass to the legatee a certain interest in the subject of the gift, previously to, and inde
This construction of the legacy being established we are of opinion that the plaintiffs are not entitled to the slaves, which they claim as forfeited under the statute of Virginia. The enactment of the statute relied upon is in these words: “ If any person or persons possessed of a life estate in any slave or slaves shall remove or voluntarily permit to be removed out of this Commonwealth, such a slave or slaves or any of their increase, without the consent of him or her in reversion or remainder, such person or persons shall forfeit every such slave or slaves so removed, and the full value thereof unto the person or persons thqt shall have the remainder or reversion, any law, usage or custom to the contrary notwithstanding.”
Several questions have been raised upon the argument
One of these is whether the statute is to be regarded in the light of a penal law — or simply as a law regulating the enjoyment and transmission of property. If it be a penal law it is strictly local, affects nothing more than can be reached and seized by virtue of the authority of Virginia, and therefore cannot be enforced in this state.
If it be a regulation of property, and if also it attached to these slaves in Virginia, so that when they left Virginia, they were of right the slaves of the plaintiffs, then it is the duty of the Courts of this State to aid the plaintiffs in the operation of their rights. Another question is, supposing this law to be one regulating property — whether the forfeiture of the tenant’s interest be complete until the property has passed beyond the limits of Virginia — or does it take effect upon the property’s reaching the line of that State — or when it is completed does it operate from the commencement of the act of removal ? and in the case first put, will the Courts of this State allow an extra territorial operation to the laws of another State ?
A third question is, whether this enactment was intended to apply, and according to its fair construction does apply, to a case where the tenant for life had bona fide acquired and held the slaves under an absolute purchase, and has removed them without fraud, under the belief that they were absolutely his 1 These questions are now mentioned merely to repel any inference that we have judicially passed upon them. We do not decide them, because if they were all determined in favor of the plaintiffs, the judgment of nonsuit ought nevertheless to stand.
The Statute of Virginia cannot, we "think, giving it the most extensive operation consistent, with a fair interpretation of its language, apply in any case except where there is a tenant for life with a vested remainder or reversion thereon dependent. When what is called a remainder is wholly uncertain and contingent — a mere executory limitation, which has not vested, and may never vest in interest — there is no one whose consent to the removal is to be asked by the ten
The judgment below is to be affirmed.
Per Curiam. Judgment affirmed.