Morrow v. . Williams , 14 N.C. 263 ( 1831 )

Jemima Bradshaw, on 30 December, 1820, signed an instrument of which the following is a copy:

"To all people to whom these presents shall come: I, Jemima Bradshaw, for and in consideration of the natural love and affection which I have and bear to my beloved son-in-law, Arthur Morrow, and my daughter, Jemima Morrow, and for divers other good considerations me hereunto moving, have given and granted, and by these presents do give and grant unto the said Arthur and Jemima Morrow, my negro boy, Abraham," etc. (mentioning several articles of personal property), "to their use, and to use singularly to them, and the children of Jemima Morrow, that she may have by her said husband, to enjoy full power and possession of after my death, to have and to hold and enjoy all and singularly the said negro boy, Abraham, etc., unto the said Arthur and (264) Jemima and their children. In witness whereof, etc.

"JEMIMA BRADSHAW.

"Signed in presence of, etc."

The plaintiffs were the wife of Morrow, and the children born at the date of the paper above set forth.

The plaintiffs moved to amend the writ, but his Honor being of opinion that they could not recover upon the merits, did not notice the motion. The verdict being set aside and a nonsuit entered, the plaintiffs appealed. Several valid objections occur to the claim of the plaintiffs.

The first is, that the gift is not established by a deed, or in its absence, by evidence of a delivery; the writing introduced and relied upon, not being under seal, is nothing more than the declaration of Jemima Bradshaw that she gave the negro to her daughter and son-in-law; but there having been no delivery, no title vested in them, and there being no valuable consideration, no right of property passed from her.

Another objection is, that supposing this writing conveyed the title of the negro, only a remainder is given by the donor, after the expiration of her own life. She gives the negro in appropriate words enough, but adds these words, "to enjoy full power and possession of after my death." Now it has been held in repeated decision that such a remainder in personal chattels cannot be created by deed. Gilbert v. Murdock, 2 Hay., 182;Nichols v. Cartwright, 2 Murph., 137; Graham v. Graham, 2 Hawks, 322;Sutton v. Hollowell, 13 N.C. 185; Foscue v. Foscue, 3 Hawks, 538. The doctrine may therefore be considered as settled.

But laying these objections out of the case, another might be taken. If the title to the negro passed by the writing, it vested in Jemima and Arthur Morrow, and not in their children. A use only was declared to them, and they ought not to be plaintiffs. The record shows that a motion was made to amend the write by striking out, probably to (265) remedy that mistake. But it does not appear what became of it.

These objections arise upon the record, and appear to me to be fatal. I therefore think judgment should be given for the defendant.

PER CURIAM. Judgment affirmed.

Cited: Dail v. Jones, 85 N.C. 225; Outlaw v. Taylor, 168 N.C. 512.