| N.C. | May 5, 1819
To all to whom these Presents shall come — Greeting: (99)
Know ye that I, Thomas Lanier, of Granville County, in the State of North Carolina, for and in consideration of the love, good will and affection, which I do owe and bear towards my son William Lanier, and for his advancement in life, do make over and convey and confirm unto the said William my manor plantation and houses, together with my lands adjacent, containing in the whole about nineteen hundred acres, be the same more or less, lying on Little NutBush in said County; also eleven negroes, viz: Jeffrey, Young, Jack, c., saving and reserving nevertheless my life in and to the said land and negroes, to use, occupy, possess and enjoy the free use, and exercise thereof, for and during the said term of my natural life, and also reserving to my wife Judith during her natural life, free and clear of interruption, the following part and parcel of the before mentioned land and houses, viz: beginning, c., which said land and negroes I do hereby give and make over to my said son William Lanier, his heirs and assigns forever; but to remain and be agreeable to the true intent and meaning herein set forth. And it is further concluded and agreed upon between the said Thomas Lanier and his son William, and is to be considered as a principal part of this contract, that the said William provide for, maintain, keep, succour and nourish my daughter Mary during her natural life, so that she do not suffer or lack for the necessaries of life in any manner whatsoever. In testimony, c. THOMAS LANIER, (Seal.)
Witness, c. *80
Thomas Lanier delivered to his son William the negro slave and part of the land shortly after the execution of this deed, and several years before his death; and during this time no claim for the support and maintenance of his daughter Mary, was set up against William. Thomas Lanier by his last will bequeathed as follows, to-wit: "I lend unto my daughter Mary Lanier, for and during her natural life, one feather bed and furniture, that which she sleeps on, also a good riding horse, and a negro woman by the name of Lucy and her increase; and a negro fellow by the name of Burges, one saddle and bridle, the negro Burges to be hired out every year during her life: also two cows and calves, c. After her decease, all that I have lent her, to be sold by my executors, and the money arising therefrom to be equally divided between my surviving children now living, except my son William, who is not to have (100) any part whatever of what I lend to my daughter Mary. And my daughter Mary is to have her maintenance from my son William according to contract made in my deed heretofore to him." The complainant and six of the Defendants were purchasers with notice.
Two questions were made in this case, 1st, whether the support and maintenance of Mary Lanier, be a charge upon the property conveyed by Thomas Lanier to William, or be only a personal charge upon William.2d, whether the property bequeathed to Mary be subject to be taken into account for her support and maintenance, in aid of the property mentioned in the deed to William.
This case, which, from various causes, had been continued in this Court since July, 1812, was decided at this term. The deed executed by Thomas Lanier, to his son, William, purports to be made in consideration of natural love and affection, and for his advancement in life: and after describing the property, and reserving a life estate to himself in the land and negroes, and a life estate to his wife in part of the land, these words follow, "but to remain and be agreeable to the true intent and meaning herein set forth: and it is further concluded and agreed upon between the said Thomas and his son, William, and is to be considered as principal part of this contract, that the said William provide for, maintain, keep, succour and nourish, my daughter Mary, during her natural life, so that she do not suffer or lack for the necessaries of life, in any manner whatsoever." The words first quoted, are evidently referable to the life estates reserved to the grantor and his wife: and the question is, whether the other words making a *81 provision for the daughter Mary, operate as a specific lien upon the property, so as to make it chargeable in the hands (101) of bona fide purchasers, but with notice. And I am of opinion that this is only a personal charge upon the son; for beside that there are no words which can be fairly construed as amounting to a lien, it is improbable that the covenanter should have designed so small a sum in proportion as was necessary to the maintenance of his daughter, to become a lien upon the whole of this property in the hands of a purchaser. The supposition seems to be inconsistent with what he professed to be the consideration, viz., the advancement of the son, and with the absolute control of the property, which is given to the son by the deed. There is no direction that the maintenance shall be raised out of the rents and profits of the property, nor any expression which takes the case out of the principles of an ordinary trust, binding only on the conscience of the son. I have looked into the cases of covenants which have been contended in this Court to run with the land, and find many much stronger than this, where the covenant was held to be merely personal. A covenant before marriage to settle certain lands upon the wife, amounts to a specific lien upon the land in the possession of the devisees: but a general covenant to settle lands upon the wife, of a certain annual value, gives no remedy to the wife, but as a specialty creditor. 1 P. Wms., 429. If A. covenant to pay an annuity to J. S. he shall not deduct for taxes, for the charge is only on the person of the covnantor. 2 Salk, 616. This case cannot be distinguished from the grant of an annuity which may be chargeable upon lands, if such a provision is made in the deed, but is in all other cases, only a personal charge. If A. devise land to B. on condition to pay C. a sum of money, and there be no clause of entry, this is no charge on the estate to give the legatee of the money a lien on the land, but the heir at law may enter and take advantage of the condition; but in Equity he is considered only as a trustee for the legatee. 1 Ves., 423.
With respect to the other question in this case, I take it to be very clear, on the ground of intention, that the (102) bequests made to the daughter Mary are in addition to the maintenance provided for in the deed; because the testator takes notice that she is to have maintenance from his son, according to their contract; and this he does immediately after disposing of Mary's legacy after her death. This completely negatives every presumption of his having forgotten the provision for maintenance; and is nearly as strong as if he had expressly declared that the bequest should be additional to it. It *82 also affords an answer to all the cases on the subject of double portions; for on the supposition that they were applicable to this case, yet it is admitted by them that the rule of considering a legacy as satisfaction of a portion, arises from a presumption that it was so intended by the testator; and that, like all other presumptions, may be repelled or confirmed. The rule, as laid down in one of the latest cases is, that if portions are provided by any means whatsoever, and the patent gives a provision by will for a portion, it is a satisfaction prima facie, unless there be circumstances to show it was not so intended. 3 Ves., 516. Here, I think, the strongest circumstance appears upon the face of the will; and, consequently, that nothing ought to be deducted from the burthen placed upon William, of maintaining his sister Mary by reason of the bequest; which ought to be considered as an added bounty of the testator, designed to place within her reach certain moderate enjoyments beyond the limits of a bare maintenance.
Cited: Haglar v. McCombs,