Hodges v. . Little, 52 N.C. 145

52 N.C. 145 | N.C. | 1859

The facts of the case were agreed on and submitted to the court for its judgment, as follows: William Gordon died in 1841, leaving a will, in which is contained, among other things, the following bequest, out of which the controversy in this case arises: "I loan to my daughter Elizabeth and to her husband, John D. Holland, during their natural lives, one-fourth part of my negroes, and then give them to the lawful heirs of Elizabeth." The slave sued for was one of those which (146) came to Holland and his wife under this bequest, and passed to the defendant as the property of J. D. Holland under the will of Gordon. Mrs. Holland survived her husband, and, supposing she was entitled thereto, willed the slave to two of her children, and this suit is brought by her administrator with the will annexed, to recover him for their benefit.

It was insisted for the plaintiff that the husband and wife took by aquasi joint tenancy, and the wife and had the benefit of survivorship.

The court being of opinion with the defendant, gave judgment accordingly, from which the plaintiff appealed. If the limitation had been to Elizabeth Holland for life, and then to her lawful heirs, there can be no question she would have taken the absolute estate by force of the rule in Shelley's case. Hamv. Ham, 21 N.C. 598; Sanderlin v. Deford, 47 N.C. 74. Indeed, this position is assumed by Mr. Rodman for the plaintiff.

Taking that to be so, it would follows that John Holland, her husband, would, jure mariti, have been entitled to the slaves, and, consequently, this action could not have been maintained by the plaintiff as the administrator of the wife.

We are at a loss to see how the fact that the limitation is to John Holland, as well as to his wife, for their lives, can put him in a worse situation or make his marital rights less effective in vesting the absolute title in him than if he had not been named.

Needham v. Branson, 27 N.C. 426, which was cited and relied on by Mr. Rodman to avoid this conclusion, does not sustain him. In that case land was conveyed to Needham and his wife, and their heirs, and it was held they took estates in fee by entireties, and the wife surviving, she was entitled to the whole estate. But ours is a case of gift ofpersonal property, in respect to which the marital rights are very different. If land is given to a wife and her heirs, and (147) there be issue born alive, the husband takes as tenant by the curtesy. If he be included in the gift, he takes a joint estate, with a chance of taking the whole survivorship. If personal property is given to a wife and her heirs, the husband takes, the absolute estate, juremariti, and of course he can take no less if he be included in the gift.Robertson v. Fleming, 57 N.C. 387.

We concur in the opinion that the plaintiff was not entitled to recover.

PER CURIAM. Affirmed.