Miller v. London , 60 N.C. 81 ( 1864 )

Battle, J.

This bill was filed by the .executors of tie-late Dr. Frederick J. Hill, for the 'purpose of obtaining the adrice and direction of the Court as to the true meaning and effect of certain clauses of his will. The case has been fairly presented to us by the plaintiffs’ counsel, and we are satisfied that the construction contended for by him is correct.

The bequest in favor of the slaves, mentioned in the pleadings, was manifestly for their quasi emancipation, without being carried from the State, and is, therefor», void as being against the often declared policy of the law. See,, among other cases, Lea vs. Brown, 3 Jones’ Eq., 141. The residuary clause an- favor of the testator’s wife is shown, by the same case of Lea vs. Brown, to be. a special one,, which does not include the slaves nor the legacies intended to be given for their benefit. The effect of this is that the said slaves, and the legacies intended for them, are undisposed of,- and go to the next of kin ; forming, however, the primary- fund for the payment of debts and general legacies.' Kirkpatrick vs. Rogers, 7 Ire. Eq., 44, Swann vs. Swann, 5 Jones’ Eq., 299.

As the land directed to be provided for the slaves, ean not be appropriated for those purposes, it cannot he purchased at all; and this disposes of all the questions asked in relation to it. So far as the money, with which the purchase was directed to he made, as well as the money witb which it was directed to be stocked, is concerned, it is the same as if that clause was stricken from the will.

The act of 1860, ch. 39, which prohibits the emancipation of slaves by will, need hot be' invoked in aid of this construction, which we have put upon the will, as the re-suit will be the same'withouc it.

A decree may be drawn in'accordance with this opinion.