57 N.C. 254 | N.C. | 1858
Aquilla Hyman bequeathed to his daughter, the defendant, Sally Ann, a negro woman, named Minerva, and a girl by the name of Piney, with a contingent limitation to her children, if she should have any, "but, should she die without a lawful heir, in that case I wish for the said negroes to revert to Adaline Hyman, Peter Hyman, Gabriel Hyman and Aquilla Hyman." After other devises and bequests in the said will contained, occurs the following: Item 5. I wish Nathan and Jerry to be hired out to support and school my three youngest children, Aquilla, Peter and Gabriel. When the youngest of the above named children becomes of age, then I wish for Nathan and Jerry to be sold, and the money equally divided between Adeline, Aquilla, Peter and Gabriel Hyman. Peter and Gabriel died under twenty-one years of age, and this bill is filed by the executor, praying the Court to advise him whether the said Peter and Gabriel took vested interests in the proceeds of the two slaves, Nathan and Jerry.
The bill further states that the female slaves, Minerva and Piney, bequeathed to Sally Ann Smith, were delivered to her and her husband, the defendant, mentioned in this bill, and that the latter of the said slaves has been sold by Smith, the husband, and has been removed to parts unknown out of the *255 State; that the said Jesse J. Smith is insolvent; that the wife of the said Smith has no child, and from her age and bad health, will very probably have no child or children; and that should this contingency thus happen, the limitation over will be frustrated by the removal of the negroes, and the insolvency of Smith. The executor further asked the Court to advise him whether if Smith and his wife shall be deemed by the Court entitled to a distributive share of the property of these two persons, Peter and Gabriel, it is competent for him to retain the same as security for the performance of the contingency in regard to the slave Piney. The answer of Smith and wife does not deny the material allegations contained in the bill, but objects to the legal deductions insisted on by the plaintiffs.
The cause was set down to be heard on the bill answer and exhibit, and sent to this Court. We cannot perceive any reason to doubt that the testator's sons, Peter and Gabriel, took vested interests in the proceeds of the slaves, Nathan and Jerry, who were directed to be sold when the testator's youngest son should arrive at full age. There is nothing like an expression of contingency annexed to the gift, and it comes, therefore, within the ordinary rule of a legacy given in presenti, solvendum in futuro. Upon the deaths, respectively, of these legatees intestate, their shares devolved upon their personal representatives, to be by them distributed after the payment of debts, c., among the next of kin of their respective intestates.
The question, then, remains, whether the share to which the defendants are entitled, in right of the feme defendant, as one of the next of kin of the intestate can be sequestered, or in any way be made to stand as a security for the slave, Piney, which they sold to a person who carried her out of the State to parts unknown — whereby the plaintiffs are likely to *256 lose the contingent interest which they had in her, under the limitations in the will of the testator. We are clearly of opinion that this cannot be done. The plaintiffs had an undoubted right, upon a timely application to the court of equity, to have its aid in protecting whatever interest they had in the said slave. Brown v. Wilson, 6 Ired. Eq. 558; Braswell v.Morehead, Busbee's Eq. 26. The remedy would have been a writ to sequester the slave until proper security was given that she should not be carried beyond the jurisdiction of the court. If the slave be carried off without objection, we know of no principle which would authorise a person having but a contingent interest in her to sequester other property of the owner of the life estate to make it answerable to the contingent remainderman in the event of his contingent interest ever becoming a vested one. In the present case, the defendants do not claim the proceeds of the slaves, Nathan and Jerry, from the executor under the will of the testator, but their claim is for distributive shares from the intestate brothers of the feme defendant. It is true that the estates of the brothers are derived under their father's will, but we cannot think that makes any difference. The shares which the defendants claim, have no connection with the slaves which were given to the feme defendant by her father's will; and the plaintiffs have no more right to sequester them, than they would have to take, in that way, any other property belonging to them. As, in our opinion, the plaintiffs cannot do the latter, they cannot resort to the former.
It must be declared that the interests which the testator's children took in the proceeds of the slaves, Nathan and Jerry, were vested, and upon the death of his sons, Peter and Gabriel, their shares devolved upon their respective administrators, and that the defendants are entitled to have paid to them whatever may be the share of the feme defendant as one of the next of kin of her deceased brothers.
PER CURIAM, Decree accordingly. *257
