31 N.C. 373 | N.C. | 1849
This was a petition filed originally in the County Court and carried by appeal to the Superior Court, in which the facts were alleged as follows:
Richard Wadkins bequeathed to his daughter, Mrs. Snowden, a negro woman named Ary; and then, in his lifetime, he sold her for the sum of $325. This is a suit brought by the daughter against the executor for the $325; and the petition states that the testator sold the negro "for some good and sufficient cause, and not for the purpose of defeating the interest of the plaintiff in the same, and that he kept the said sum of $325 in his possession and did not dispose thereof, but intended it (374) should be given to the plaintiff under his will, in the place of the woman Ary." Upon demurrer, the petition was dismissed, and the plaintiff appealed. The gift is specific of a particular negro by name. Of course, if the testator had no such negro the gift would necessarily fail. It is equally well settled that, if he had the thing at the making of the will, and it be afterwards destroyed, or disposed of by the testator, the legacy likewise fails by what is called an ademption. There is in neither case anything to answer the description in the will; and therefore the will passes nothing. It is said, indeed, that this testator kept *258 the identical money got for the negro, and intended the daughter to have that, instead of the negro. That is very probable; but, if it were true, the testator never put that intention into the will, so as to become a part of it and enable the plaintiff to make this claim under a testamentary disposition — as she must do in this suit. It is impossible that, under the gift of a specific negro, a sum of money can pass; and therefore no intention to that effect can be averred against the express words of the will.
PER CURIAM. Decree affirmed with costs.
Cited: Starbuck v. Starbuck,
(375)