Robards v. . Jones

Detinue, in which the parties submitted the cause to the judgment of the court upon the following case agreed, to wit: James D. Ridley, by his will made 15 August, 1820, and soon afterwards admitted to probate, devised and bequeathed as follows, to wit:

"Item 1. My will and desire is that, after my debts are paid, all my property, both real and personal, should be kept together for the use of my beloved wife, Elizabeth J. Ridley, and for the support and schooling of my two sons, William W. Ridley and John A. Ridley, until they arrive at the age of 21 years or until my wife marries; and at her marriage or my two sons coming of lawful age, my will is that all my property, both real and personal, my gold watch excepted, should be equally divided between my wife Elizabeth and my two sons, William W. Ridley and John A. Ridley, to them and their heirs forever.

"Item 2. I give unto my beloved wife my gold watch, to her (54) and her heirs forever.

"Item 3. If my two sons, William W. Ridley and John A. Ridley, should die and leave no lawful issue, my will and desire is that their part of the estate should be equally divided, and for one part thereof to go to my wife, Elizabeth J. Ridley, to her and her heirs forever, and the other half to be equally divided between my two brothers and my sister, to them and their heirs forever."

After the death of the testator his will was proved, the executors qualified and assented to the legacies. The property passing under the first clause included a large number of negro slaves. Both the legatees, William W. and John A. Ridley, arrived at full age, but no division was then made. Afterwards, John A. Ridley died without leaving issue, and subsequently thereto the widow Elizabeth and William W. Ridley divided the slaves between them, leaving in the possession of William one-third part thereof. Afterwards, William W. Ridley died without leaving issue, having made a will and appointed the defendant executor, who proved the will and took possession of the slaves so found in his testator's possession and forming the said third part, of which the slaves named in the writ and declaration are parcel.

The plaintiff Robards is the executor of Howell Ridley, one of the brothers of the testator named in the third clause of the will, who died in the lifetime of the said William W. Ridley, and the plaintiff Hinton is the administrator of Willis Ridley, the other brother named in the said clause and of Mrs. ........ Robards, the sister therein named, both of whom died in the lifetime of the said William W. Ridley. The division of the slaves hereinbefore mentioned is ratified and confirmed by the parties, and the slaves so left in the possession of the said William W. Ridley are considered and treated as the moiety which, by the said third clause, is directed to be divided between the testator's two brothers and his sister. At the death of the said William W. Ridley he was largely indebted, so that his debts cannot be paid unless the said slaves, or some portion thereof, be applied to their satisfaction.

For the defendant, it is insisted: (1) That the limitation over (55) in the said third clause is too remote and cannot, in law, take effect, and consequently that the entire interest vested in the said William W. Ridley and John A. Ridley. (2) If this be not so, yet that the said slaves are liable in the hands of the defendant to his testator's debts, and cannot be claimed by the plaintiffs until such debts are paid. And it is agreed that if, on either of these grounds, the plaintiffs are not entitled, judgment of nonsuit is to be entered, otherwise judgment to be for the plaintiffs for the slaves and damages claimed in the writ and declaration. And it is further agreed that, should judgment pass for the plaintiffs, the defendant will surrender to the plaintiffs any issue which may be of the said slaves since they came into his possession, and that the plaintiffs shall receive from the defendant, on account of the damages and in satisfaction thereof, such hires as the defendant may have actually received, or the securities taken, or that may be taken by him therefore, the defendant to be allowed all just credits by reason of payments for keeping chargeable slaves, and the plaintiffs to receive the balance only, if any there be, of such hires.

Upon the case so submitted, his Honor, being of opinion for the plaintiffs, rendered judgment in their behalf for the slaves mentioned in the writ and declaration, and for damages, costs, etc.

From this judgment the defendant appealed to the Supreme Court. 1. The limitation over in the third clause of the will to the testator's two brothers and sister of the personal estate given to the two sons of the testator in the first clause of the will is not too remote. The testator in the third clause says, "if my two sons should die (56) and leave no lawful issue (an event which happened), my will is that their part of my estate should be equally divided, and one part thereof to go to my wife, and the other half to be equally divided between my two brothers and my sister." When the expression used by a testator in making an executory limitation is "leaving no issue," the established rule is, when applied to personal estate, that it imports leaving no issue at the death of the first taker, and ties the event up to that time, and therefore prevents a perpetuity. Forth v. Chapman, 1 P. W., 663, and 2 Powell on Devises, 566 (Jarman's Ed.), where all the authorities are cited.

2. The slaves are not assets in the hands of the defendant as the administrator of William W. Ridley. The hires and profits of the slaves during the life of William belonged to him; but on the event which has taken place, viz., the death of both of the sons leaving no issue, the original stock of slaves and their increase went over to the ulterior legatees. The three ulterior legatees — the two brothers and the sister of the testator — died in the lifetime of the two sons, the first takers. The executory interest, resting on an uncertain event, went to the administrators of her sons, who were certain, viz., the ulterior designated legatees. Pinbury v.Elkin, 1 P. W., 563.

In Barnes v. Allen, 1 Bro., 181 (Belt's ad.), Lord Thurlow remarked that a contingent interest might vest in right, although it did not in possession, and that contingent executory interests might be as completely vested as if they were in possession, so as to go to the representative of a named legatee who might happen to die before the event took place. See 1 Roper on Legacies, 402.

We think that the judgment must be

PER CURIAM. Affirmed.

Cited: Sanderlin v. Deford, 47 N.C. 77.

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