Forbes v. . Smith

43 N.C. 30 | N.C. | 1851

The master reported, on the inquiry directed at the hearing, that the fund in the hands of Mrs. Smith as trustee, in lieu of the real estate sold, and to which the defendant Shackleford is entitled as tenant by the curtesy, consists of certain slaves and of the sum of $500 in money, the proceeds of the sale of another slave. Upon the report, the defendant moved to dissolve the injunction against proceeding on the judgments at law, submitting to a decree to pay to the plaintiff annually the interest on the $500 and the hires and profits of the slaves; and the plaintiff, on the other hand, moved for a decree directing the defendant to sell the estate for Shackleford's life in those slaves, in the first instance on execution, when taken out.

The Court is of opinion that neither motion is precisely correct, although the act of 1812 makes trusts in personal property liable to execution against the cestui que trust, yet it is settled that the case of a trust of personal chattels for one for life and then in trust for others is not within it, as the trustee's legal title must be preserved entire for the security of those entitled under the ulterior limitations.Dick v. Pitchford, 21 N.C. 480; Battle v. Petway, (31)27 N.C. 576. But although an execution will not reach the slaves, yet they and also the money, or rather Shackleford's beneficial interest in those funds as his equitable property, may, and ought to be, sold under a decree of this Court. The sale is necessary to enable the plaintiff to ascertain his demand against Shackleford after he shall have paid the debt. He is not obliged to pay the debt and wait for the partial reimbursement arising from the annual income of the property during Shackleford's life, but he may require an immediate sale, under the direction of the Court, of his interest for whatever it will bring, so as to have it applied in a lump to the reduction of the debt. As to his interest in the money it is only selling out an annuity of $30 for the life of Shackleford, and in respect of the slaves the contingency is the double one, depending on the lives of both Shackleford and the negroes, which, of course, will be duly considered by bidders. The defendant Mrs. Smith, or, if she prefer it, some other commissioner, must be directed to make sales of those interests after twenty days notice for ready money, and after applying the proceeds in discharge of the judgment at law the injunction should be dissolved for the residue. It will be understood, of course, that the purchasers of the slaves will not get the legal title, but that it will remain in the trustee, and the purchasers stand towards her in the relation of cestui quetrust, with liberty to come to an arrangement with her as to the possession of the slaves or to apply to the Court of Equity for redress, as any othercestui que trust might.

PER CURIAM. Decreed accordingly.

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