Fortescue v. . Satterthwaite , 23 N.C. 566 ( 1841 )

The case was one of trover, brought to recover the value of three negroes, Violet, Matilda, and Bill. These negroes were the children of negro woman Mimy, who belonged to one William Satterthwaite, deceased. The said William Satterthwaite made and published his last will and testament, dated 17 September, 1810. The plaintiff claimed under the following clauses in the said will:

"I give and bequeath to my daughter Nancy Satterthwaite, (567) one negro woman named Mimy and Jaban, and one bed and furniture, etc., to her and her heirs forever." The testator, after making several bequests to his other children, says: "In case either of said children should die without heir properly begotten, it is my wish that the property should be equally divided between the children then living, whether James, Nancy, or Sally." The testator died leaving Sally, the plaintiff's intestate, James and Nancy, his children and the legatees mentioned in the said will. James died first; Nancy then died without issue, in July, 1836, leaving Sally the only survivor. And the question was, whether Sally was entitled to the negroes under the last clause, as aforesaid. The defendant contended that the limitation over was too remote, and the plaintiff could not recover. And, furthermore, he offered in evidence a bill of sale from Nancy Satterthwaite, dated 28 May, 1833, for the negroes in controversy, a copy of which is annexed, marked (B); and, also, an agreement between Henry C. Fortescue and the defendant, dated 27 January, 1834 (after the said Henry's marriage with Sally), agreeing to refer the rights of the said Henry and the defendant to the negroes of the said Nancy, claimed by them respectively, to the award of certain arbitrators, the decision of the arbitrators in favor of the defendant as regards the negroes now in controversy, and also a bill of sale for these negroes from Henry C. Fortescue and his wife, Sally (the plaintiff's intestate), to the defendant, dated 27 January, 1834, made in pursuance of the award. A copy of this bill of sale is hereunto appended, marked (D). All which testimony was rejected by the court. Nancy died intestate and without issue, in July, 1836. Sally was a feme covert at the execution of the said deed.

His Honor, Judge Bailey, was of opinion that the limitation in the will was not too remote, but that the words, then living, whether James,Nancy, or Sally, tied up the contingency to the death of the first taker without issue. Under this instruction, the jury returned a verdict for the plaintiff. A new trial having been moved for and refused, and judgment having been rendered, pursuant to the verdict, the defendant (568) appealed.

(B)

COPY OF BILL OF SALE FROM NANCY SATTERTHWAITE.

Know all men by these presents, that I, Nancy Satterthwaite, of the State of North Carolina and county of Beaufort, for and in consideration of the love and affection which I have unto my nephew, Fenner B. Satterthwaite, of the aforesaid county and State, and the sum of $1 to me in hand paid by the said Fenner, etc., do hereby alien, set off, and confirm unto my said nephew, Fenner B. Satterthwaite, all my right, title, interest, and claim which I have in and to the following negroes (describing, among others, the negroes claimed in the plaintiff's declaration), all of which described negroes unto my said nephew, Fenner B. Satterthwaite, his heirs and assigns, etc., forever. (Then follows a clause of warranty against all persons claiming by, through, or under her.) Signed, sealed, witnessed, and registered according to law and dated 28 May, 1833.

(D)

COPY OF THE DEED FROM HENRY C. FORTESCUE AND HIS WIFE TO THE DEFENDANT.

Know all men by these presents, that we, Henry C. Fortescue and wife, Sally, of the one part, and Fenner B. Satterthwaite of the other part, all of the county of Beaufort and State of North Carolina, witnesseth that we. Henry C. Fortescue and wife, Sally, do by these presents, for and in consideration of $1 to us in hand paid by Fenner B. Satterthwaite, the receipt whereof we do hereby acknowledge and ourselves fully satisfied for all our right, title, and interest which we now or may have in and to negro woman Violet and child not named, Matilda and Jim, formerly the property of Nancy Satterthwaite; and we, the aforesaid Henry C. Fortescue and his wife, do for ourselves, our heirs, executors, and administrators, covenant to and with the said Fenner B. Satterthwaite to warrant and defend the title to the said negroes from the proper claim of all persons claiming by, from, or under us, to the only proper use and benefit of him the said Fenner B. Satterthwaite, to him, his heirs, executors, administrators, and (569) assigns. As witness our hands and seals, this 27 January, 1834.

Signed, sealed, witnessed, delivered, and registered, all according to law. This is an action of trover for the conversion of three slaves. Pleas, the general issue and release. William Satterthwaite in 1813 bequeathed legacies to each of his three children, James, Nancy, and Sally. The testator, after making several other devises and bequests in his will, then proceeds and says: "In case either of my said children should die without heir lawfully begotten, it is my wish that the property should be equally divided between the children then living, whether James, Nancy, or Sally." The said three children were alive at the death of their father. Afterwards James first died; Nancy then died without issue (in July, 1836), leaving Sally the only survivor. The slaves in controversy were a part of those bequeathed to Nancy as aforesaid. Sally had married the plaintiff Fortescue; and she and her husband, on 27 January, 1834, executed to the defendant, then in possession, the deed for the said slaves, marked in this case with the letter (D). Sally, the plaintiff's wife, died, and he, as her administrator, has brought this action. The judge was of opinion that the contingent interest or executory devise which each one of these children had in the legacies to the other children was not too remote; but that the words"then living, whether James, Nancy, or Sally," tied up the contingency to the death of the first taker without issue. But the judge refused to permit the aforementioned deed from the plaintiff to the defendant to be received in evidence. The plaintiff had a verdict and judgment, and the defendant appealed.

(570) We agree with the judge that, in this case, the limitation over to Sally, the survivor, of the legacy given to Nancy, on her dying without issue, was not too remote; but that it was a good executory devise. The meaning of the testator is plain, that on any one or two of the children dying without issue, the survivor or survivors, then living, whether James, Nancy, or Sally, should have the legacy which had been before given to the one so dying. The contingent interest, if it ever could vest, must necessarily vest during the period of a life or lives that were in being at the death of the testator. The words "then living" tie up the limitation during the lives of the three children.

We do not agree with the judge in the rejection, as evidence, of the deed which Fortescue and wife executed to the defendant in 1834, and during the life of Nancy. It is true, as stated in the argument, that a possibility cannot be transferred at law. But by a possibility we mean such an interest, or the chance of succession, which an heir apparent has in his ancestor's estate; which a next of kin has of coming in for a part of his kinsman's estate; which a relation has of having a legacy left him, etc. Such interests as these, we conceive, are the true technicalpossibilities of the common law. 2 P. Wil., 181; Whitfield v. Faucet, 1 Ves., 381; Atherley on Mar. Sett., 57. But executory devises are not considered as mere possibilities, but as certain interests and estates.Gurnel v. Wood, Willes, 211; Jones v. Roe, 3 Term, 93. In the last case the judges seem to have considered it as settled that contingent interests, such as executory devises to persons who were certain, were assignable. They may be assigned (says Atherley, p. 55) both in real and personal estate, and by any mode of conveyance by which they might be transferred had they been vested remainders. In the present case, however, it is unnecessary to discuss the question how far the deed would have bound the wife in case the husband had died before the contingency happened, and left her surviving. The deed, as to the husband, is an estoppel, and when his wife acquired a vested interest, to wit, in 1836, on the death of Nancy, the said interest passed to the defendant by force of the said deed, either upon the principle that the interest, when it accrued, fed the estoppel, Christmas v. Oliver, 2 Smith Select Cas., 417, or the deed operated as a release of his wife's choses in action. If the deed be considered as a release, the interest of the (571) wife, as well as that of the husband, was by it extinguished, and there was nothing left to survive to her administrator. Burnett v. Roberts,15 N.C. 83; 1 Shep. Touch., 333; 2 ib., 161 (Preston's Ed.); 1 Roper on Hus. and Wife, 232. It is contended for the plaintiff that the deed has no conveying words in it; that it is but an agreement or covenant under seal, and therefore that it cannot operate as an assignment. The answer is, that a deed of sale of goods and chattels may be made without any words of bargain and sale, as well as by those words. 1 Shep. Touch., 388 (Preston's Ed.). If the words in the deed plainly evidence a sale, it is sufficient without technical words. We think that is the case in this deed. If the deed be considered as a release, the words, we think, are sufficient to operate as such. If one do acknowledge himself under seal to be satisfied and discharge a debt, this is a good release of the debt. 2 Shep. Touch., 160 (Prest. Ed.). In this deed the plaintiff acknowledged himself satisfied for his right and title which he then had or might thereafter have in the said slaves. On the death of Nancy, the plaintiff's wife had a vested estate. The release of the husband to the defendant in possession must therefore have the effect of destroying that title in and to the slaves which, without the release, the husband had, at that instant of time, a right to receive from the defendant and reduce into his possession.

PER CURIAM. New trial.

Cited: McNeely v. Hart, 32 N.C. 66; Respass v. Lanier, 43 N.C. 283;Cobb v. Hines, 44 N.C. 351; Hilliard v. Kearney, 45 N.C. 233; Barwickv. Wood, 48 N.C. 310; Gwynn v. Setzer, ib., 384; Wellborn v. Finley,52 N.C. 236; Bodenhamer v. Welch, 89 N.C. 81; Galloway v. Carter,100 N.C. 121; Starnes v. Hill, 112 N.C. 26; Kornegay v. Morris,122 N.C. 202; Sain v. Baker, 128 N.C. 258; Kornegay v. Miller,137 N.C. 663; Campbell v. Cronly, 150 N.C. 468; Beacom v. Amos,161 N.C. 367.

(572)