22 N.C. 272 | N.C. | 1839
The executor charged in his bill that Gemison G. Cotton and Eliza Thompson had died before his testator, whereby he was advised that their legacies had lapsed. He then stated that there was a deficiency of assets to pay the debts, except from the hire of the negroes, and that he was advised the persons entitled to the negroes were entitled to their hires, to be reimbursed from the residue of the estate; and that there was no fund in his hands to pay the pecuniary legacies mentioned, except the negroes given to Eliza Thompson, and which lapsed by her death before the death of his testator; but, as to that, and the negro Eli, the executor said that he was in doubt whether they passed under the residuary clause in the will; whether the legacies were to be paid — if paid at all — as to their whole amount, or should abate pro rata; or whether, as to the negroes given to Eliza Thompson, and the man Eli, the testator died intestate, and the said negroes thereby went to the next of kin of the testator.
To the bill answers were filed, and upon the hearing in the Supreme Court, whither the cause was transmitted, it was represented that the man Eli had refused the gift of freedom, on account of the requisition in the law that he should leave the State. It is represented by the parties in this suit that the negro man Eli refuses the gift of freedom because of the condition to leave the State, which the law annexes to emancipation. The question, therefore, is not presented whether, since our act of 1830 (1 Rev. Stat., ch. 111, sec. 58), a bequest of freedom to a slave is to be deemed null, or construed an injunction on the executor to procure his emancipation, according to the provisions of that act.
The legacy to Eliza Thompson having lapsed by her death before the testator, the negroes bequeathed to her, as well as the negro Eli, fall into the residuum of the testator's estate; and the question is whether the residuum is disposed of by his will. The defendant Ervin, and others, claim it under the 9th clause of the will. We are of opinion, however, that the terms made use of in that clause, "the (274) *228
residue or balance of my money," are not general enough to take in these negroes. Simms v. Garrott,
The charge on the partial residue, bequeathed in the 9th clause, operates for the benefit of the other legatees. But none of the legacies are to abate unless the undisposed property should prove insufficient for the payment of debts.
PER CURIAM. Decree accordingly.
Cited: McCorkle v. Sherrill,
