43 N.C. 281 | N.C. | 1852
In 1814 Samuel Clark executed and delivered to Edna Loyd a paper-writing under his hand and seal, which is in the following words: "This day received of Edna Loyd, for and in behalf of Joseph H. Winfield and Elizabeth Loyd, children of said Edna Loyd, the sum of $400 in full payment for a negro girl by the name of Sal, reserving unto the said Edna the use of the said Sal and her increase, if any, during the natural life of the said Edna. And in case the said Joseph and Elizabeth both died without leaving any child or children, then, and in that case, to go to the children of the sister of said Edna (Elizabeth Clark, deceased), which said negro I acknowledge to be fully satisfied for, and do secure peaceably to the said Edna, etc., the said Sal from all persons whatever. In witness whereof I do set my hand and seal, this 28 February, 1814." This paper was duly sealed, delivered, attested, and registered. Edna Loyd took immediate possession of the slave, which she retained up to the time of her death, which occurred in 1851. Sal has had several children, and upon (282) the death of Edna Loyd the defendant Lanier took two of them into his possession, and still has them. Elizabeth, one of the children of Edna Loyd, died before her mother, intestate and without issue. Joseph Winfield, the other child of Edna mentioned in the deed, died in 1828, before Elizabeth, leaving one child, the defendant Sophia, who intermarried with the defendant Alfred Lanier. The plaintiff is the administrator of Elizabeth Loyd, and the defendant Lanier of Joseph H. Winfield.
The bill charges that Elizabeth Loyd and Joseph H. Winfield were tenants in common of Sal and the increase and prays a decree for a partition and account.
The answer submits that there are no words of conveyance in the deed, and therefore the legal title to the negro woman Sal and her increase remains in Samuel Clark and his representatives, and the deed was *182 merely a declaration of a trust; or if the legal estate passed to the said Edna Loyd by the delivery to her of the slave, the deed must be regarded as a declaration of trusts, and the said Edna held the said slaves upon those trusts, and that upon a proper construction of these declarations of trusts the remainder in said Sal and her issue vested exclusively in the defendant Alfred Lanier in right of his wife Sophia upon the death of the said Edna Loyd, or in him as administrator of Joseph H. Winfield by way of cross-remainder between him and said Elizabeth.
The case involves the proper construction of the paper-writing set forth in the bill. Upon the part of the defendants it is contended that the legal title of the girl Sal and her increase is still in the personal representatives of Samuel Clark for the want of words of conveyance in it; and, secondly, if by the delivery the slave did pass to Edna Loyd the paper-writing amounted to a declaration of a trust in favor (283) of herself for life with cross-remainders to her two children, and that under this last aspect of the case, as Elizabeth Loyd died without leaving issue, and the other tenant in remainder left a child, Sophia, the whole estate vested in her.
The first question raised is answered in Satterwhite v. Fortescue,
Admitting that the negro Sal did pass by the conveyance, the only controversy raised by the pleadings is as to the nature of the interest which Elizabeth Loyd and Joseph H. Winfield took under it. Upon the part of the defendant it is alleged that they took what is termed cross-remainders, that is, that they took as tenants in common, and if either died without leaving issue the other should take the whole. We have considered only the question raised by the parties. There are no cross-remainders created by the deed between Elizabeth Loyd and Joseph H. Winfield, but a simple conveyance to them, thereby creating under it a tenancy in common. The expression upon which the defendants rest to show that there is a survivorship arising under the deed refers to an entirely different matter, towit, the interest secured to the children of Mrs. Clark, the sister of Edna Loyd. The words are, "and in case the said Joseph H. and the said Elizabeth both die without leaving any child or children, then, and in that case, to go to the sister's children of said Edna (Elizabeth Clark, deceased)." These words show no intention on the part of S. Clark to create a survivorship *183
between the children of Edna. Do they, in themselves, constitute or create cross-remainders? Picot v. Armistead,
By force of the deed upon the ground upon which the parties have put the controversy Joseph H. Winfield and Elizabeth Loyd were tenants in common. Upon the death of the latter her right passed to her personal representative, and the plaintiff is entitled to the decree he seeks. It must be referred to the master to take an account of the hires, etc., of the slaves.
PER CURIAM. Decree accordingly.
Cited: Cobb v. Hines,
(285)
