Beaufort County NcArchives Court.....Fenner B. Satterthwaite, Henry C. Fortescue, Adm'r &c V. 1841
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Connie Ardrey n/a January 30, 2012, 7:31 pm

Source: N C Reports
Written: 1841

Henry C. Fortescue, Adm'r &c v. Fenner B. Satterthwaite

A testator devised certain negroes to his three children, 'J.' 'S.' and 'N.' 
and then proceeded as follows: "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 'J.' 'S.' or 'N.' 
died first. 'N.' then died without issue, leaving 'S.' surviving. Held, that 
under this limitation 'S.', the surviving child, took the property belonging 
to 'N.'

'S.' the survivor, had previously intermarried with the plaintiff, and after 
this intermarriage, and before the death of 'N.', the plaintiff conveyed the 
negroes, now in controversy, being part of those in which his wife had a 
contingent interest, to the defendant. Held that this deed was an estoppel as 
to the husband, and when his wife acquired a vested interest by the death 
of 'N.', such interest passed to the defendant by force of the said deed, 
either upon the principle that the interest, when it accrued, fed the 
estoppel, and thereby gave an absolute title, or that the deed operated as a 
release of the wife's choice in action.

If the words in a deed of sale of goods and chattels plainly evidence a sale, 
this is sufficient without technical words. Such a deed of sale may be made 
without any words of "bargain and sale" as well as with those words.

Contingent interests, such as executory devises, &c. are assignable. A 
possibility cannot be transferred, but by a possibility is meant, the mere 
expectancy of an heir apparent, or of one who is next of kin to a living man, 
or the prospect of having a legacy left, &c.

This was an appeal from the judgment of the Superior Court of Law of Beaufort 
County, at the Spring Term, 1841, his Honor Judge Bailey presiding. 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 17th 
September, 1810. The plaintiff claimed under the following clauses in the said 
will: "I give and bequeath to my daughter Nancy Satterthwaite, one negro woman 
named Mimy and Jaban, and one bed and furniture, &c. to her and heir heirs 
forever."

The testator, after making several bequests to his other children, says: "In 
case of 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 plaintiff 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 29th 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 27th 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, claiming 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 27th 
January, 1834, made in pursuance of the award. A copy of this bill of sale is 
hereunto appended, marked (D). All of which testimony was rejected by this 
Court. Nancy died intestate, and without issue in July, 1836. Salle 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 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 & 
affection which I have unto my nephew Fenner B. Satterthwaite of the aforesaid 
County and State, and the sum of one dollar to me in hand paid by the said 
Fenner, &c. do herby 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 & assigns, &c. 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 the 28th 
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 
one dollar to us in hand paid by Fenner B. Satterthwaite, the receipt thereof 
we do herby 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 wife Sally, do for ourselves, our 
heirs, executors and administrators covenant to and with the said Fenner B. 
Satterthwiate to warrant and defend the title of 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. Satterthaite, to him, his executors, 
administrators, and assigns. As witness our hands and seals, this 27th Jan. 
1834.

Signed, sealed, witnessed delivered and registered, all according to law.

J. H. Bryan for the plaintiff
W. H. Haywood and Iredell for the defendant

NC Supreme Court Justice Daniel, J. - New trial

Additional Comments:
NC Supreme Court June 1841 Term

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