Harris v. . Hearne , 60 N.C. 481 ( 1864 )

We concur with his Honor in the opinion that the executory bequest to Aaron Almond of the slaves in the event that the first taker, Susannah Almond, should die childless, on the happening of the event, vested absolutely in Aaron, and was not defeated (483) by the fact "that he did not remove back to this country."

The wish of the testator that, "should his daughter die childless, his son should remove back to this country and have them (the slaves), but not to take them to any other part of the country," does not have the effect of a condition precedent to the limitation over to him, whereby it was to be defeated, but must be considered simply as the expression of an earnest wish, in respect to what he supposed would benefit the slaves, without impairing the right of property which he intended should vest in his son. In the language of the books, these words are "precatory," not "mandatory."

We are led to this conclusion by several considerations, which it is not needful to elaborate much at large.

1. Such a restriction on the right of property, as a condition, is impracticable and incompatible with the nature of personal property. This must have been known to the testator. So it is unreasonable to suppose that he intended to impose a condition and meant that his son should not have the slaves unless he complied with it. On the other hand, it is reasonable to suppose that the testator, having a decided wish on the subject should recommend and ask his son to come back to this country and keep the slaves here, should his daughter die childless; on which event the negroes are to belong to the son.

2. The severest test that a condition is intended is a provision by which it is to be enforced: as by making a limitation over to some one else on breach of the condition. The testator had other children and grandchildren, as appears by the will, who lived in this country; and if Aaron was not to have the slaves, should Susannah die childless, unless he removed back to this country, and the testator meant to (484) insist on it as a condition, he would have added a provision: "If Aaron does not remove back to this country, then the slaves are to belong to my son Edmond, or to the children of my daughter Polly, or such of them as will take them on the condition that they are not to be taken out of the country" — so as to leave no doubt that it was hisprimary intention that the slaves should not be taken out of the country.

The absence of a limitation over makes a broad distinction between this case and Reeves v. Craig, ante, 208 — besides the fact that in that case direct words of condition are used, "but if Mary is dead or does not release, I give the land to my children," and not words simply expressing a wish.

PER CURIAM. Affirmed.