23 N.C. 281 | N.C. | 1840
This was an action of trover to recover the value of a slave named Anesley. Plea, not guilty. In 1824, Noah Perry made his will, and after several other devises and legacies, devised lands and three slaves (James, Hannah, and Dempsey) to his wife, Molly Perry, for life or widowhood. Then comes this clause in the will: "I wish for the negroes lent to my wife, if they do not behave, to be hired out. I also wish for all the negroes not given, to be hired out as soon as they will bring anything. And after the death of my wife or marriage, I want all my property not given away to be equally divided among all my girls." Anesley is one of the slaves directed to be hired out. The testator (282) did not direct how the hires of the young negroes should be disposed of. The defendant is the daughter of the testator, and was the wife of Joseph Biggs. In 1830, Joseph Biggs by deed conveyed to the plaintiff "his undivided part of the negroes willed to his wife by Noah Perry after the death of Molly Perry, the widow." Joseph Biggs died in 1832. In 1837, the widow, executor, and daughters of Noah Perry, by a parol agreement, divided the said property, and the slave Anesley fell to the defendant, who took her into possession and converted her to defendant's own use before the date of the plaintiff's writ. Molly Perry, the widow, is yet alive. The court was of the opinion that the plaintiff could not recover. He was nonsuited, and appealed. *217
That the testator did not contemplate a present and an immediate bequest to his daughters of the young negroes is to be collected from these words in his will, towit: "I also wish for all the negroes not given to be hired out as soon as they will bring anything." And afterwards he proceeds and says: "I want all my property not given away to be equally divided among my girls." We ask, when? The testator answers, "After the death or marriage of my wife." The remainder in the three negroes given to his wife for life composes a part of the property not given away. The daughters, of course, had but an interest in remainder in that portion of the property. And we think that the testator has made a bequest only in futuro to his daughters of the young negroes; for, as to them, the daughters can claim by no other words in the will than those just mentioned. It is quite unnecessary for us to decide whether the widow took a life estate by implication in the young negroes, or whether the executor was to receive the hires during the life of the widow for the next of kin. It seems to be clear that the daughters had no right to the possession of the young negroes (of whom Anesley is one) until the death or marriage of their mother. Joseph Biggs, by his deed in 1830, conveyed nothing more than this ulterior interest of his wife. In 1837 Anesley came to the defendant, not by force of the bequest in her father's will, but by the parol assignment of the temporary interest, which was either in the widow or the testator or (283) his executor.
The time has not arrived for the plaintiff to claim under his deed.
PER CURIAM. Nonsuit affirmed.
Cited: Steadman v. Steadman,