Craven County NcArchives Court.....William Masters, Charles James Executors V. 1819 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 26, 2009, 1:47 pm Source: Nc Reports Written: 1819 The Executors of Charles James v. William B. Masters From Craven May Term 1819 Testator bequeaths negro slaves to his wife during her life, and directs that after her death they shall be set free; and enjoins it as a duty upon his executors to use their best endeavors to procure from Court a license to emancipate them. He then gives several small legacies to his nieces, and concludes his will with a declaration "that no person or persons whatever, being in any degree related to him or his wife, or any other person or persons whatever, other than was therein before mentioned, should ever under pretence come in for a share, or receive any part of his estate." He appoints his wife and four other persons his executors: his wife holds the negroes during her life, and bequeaths them by her will to her niece, whose husband takes them into possession, claiming the absolute property in them. The surviving executors of the testator bring detinue for the negroes, and recover, because, 1. Although by the policy of our law, the ulterior limitation after the wife's life estate is void, the entire interest in the negroes did not vest in her; she could not claim under the will and in express opposition to the will; and here there were express words of exclusion as to any other interest than one for life. And her interests as one of those among whom the residue of the estate undisposed of by the will was to be divided, was not such an interest, before the assent of the executors, as vested a legal title in her legatee. As to the assent of the executors, it was in this, as in all other cases, co- extensive with the legacy. Where there is no remainder, the assent enures to the benefit of the particular tenant only; and the executors are entitled to the possession of the chattel again, to perform the other trusts of their office. 2. The clause of the will excluding all persons from a beneficial interest in the negroes after the life estate of the wife, does not affect the interest of the Plaintiffs as executors or trustees, nor the interest arising from their office of executors, which is necessary to perform the trusts of the will or the trusts raised by law. A legacy cannot be claimed under will in express opposition to the plain intention of the testator. But the next of kin can take in express opposition to the words of the will; for they take under the law, and not under the will. Charles James being possessed of sundry negro slaves, made and published his last will, and therein bequeathed to his wife Comfort James, all his estate during her natural life; and after her death he directed all his negro slaves to be emancipated, declaring that he wished to give to them their freedom as a reward for their faithful and meritorious services; and he requested his executors to use their utmost endeavors with the County Court of Craven to obtain a license to emancipate them. He gave several small articles of his estate to his nieces, and declared, at the conclusion of his will, "that no person or persons whatever, being in any degree related to him or his wife, or any other person or persons whatever, other than was therein before mentioned, should ever, under any pretence, come in for a share or receive any part of his estate." He then appointed his wife and the plaintiffs in this suit his executors. Comfort James, the widow, with the assent of her co-executors, took the negro slaves into her possession as legatee, and kept them during her life. She died on 6 January, l816, having, by her last will, given and bequeathed all her property to Polly, the wife of the Defendant, whom she appointed her executrix. The defendant took the negroes into his possession, and thereupon the Plaintiffs, who are the surviving executors of Charles James, brought an action of detinue to recover them; and it was referred to this Court to decide whether they be entitled to recover. Gaston, for the defendant. Henderson, Judge: The fundamental rule in the construction of wills is, that the intention of the testator, if not consistent with the law, shall prevail; and all artificial rules have that object in view; and all the cases cited by the Defendant's Counsel and relied on in this case, are bottomed upon that rule. As where an estate is given to one for life, with a remainder that is void, and the executor is excluded, it raises a presumption that the legatee for life shall have the whole interest, because there is none other mentioned in the will to take, after the determination of the life estate. But I cannot imagine a case, where a legacy can be claimed under a will, in express opposition to the plain intention of the testator. It is a contradiction in terms. But there are many cases, where the next of kin take in express opposition to the words of a will; there they take as next of kin under the law, and not under the will. For the right of the next of kin is defeated only by a substitution of some person to take in their place, and not by a declaration that they shall not take. As if a man by his will were to declare, that his next of kin should have no part of his estate, and not direct who should take: the next of kin would take, not under the will, but under the law. The wife's claim in this case is under the will, that is, that her life estate shall he extended into an absolute interest, because the ulterior limitations are void, and the executors are excluded, which might raise a possible intent in her favor, were it not that there are words in the will express opposition to such claim. And although she will take part as one of the distributees, she will take nothing as legatee. Therefore she had nothing to bequeath to the defendant; for her interest, as one of those among whom the residue of the estate undisposed of by the will was to be divided, was not such an interest before the assent of the executors, as vested a legal title in her legatee. Next, as to the right of the executors. Although all beneficial interest may be taken from them by the will, this does not affect their interest as executors or trustees, or that interest arising from their office of executors, which is necessary to perform the trusts of the will, or the trusts raised by law. They therefore are entitled to the possession of the negroes; nor will the assent given to the life estate, debar them from regaining the possession. An assent to a legacy passes an interest co-extensive with that legacy; and where there is a legacy to one for life or years, with a remainder, an assent to the legacy to the particular tenant, is an assent to the person in remainder, according to the English law; for they both, in law, constitute but one legacy. But where there is no remainder, the assent enures to the benefit of the particular tenant only; and the executor has a right to the possession of the chattel again, to perform the other trusts of his office. The. doctrine is illustrated by the decision of this Court in the case of Dunwoodie v. Carrington, 4 N. C. 355, if it needed illustration. In what manner the executors are to dispose of the property, is not, nor can it be brought before the Court in the present action, however much it may be desired by those interested in the question; they are not parties to this suit, and their rights cannot be adjudicated. The Court are of opinion that the Plaintiffs are entitled to recover. Cited: Stone v. Hinton, 36 N. C. 18; McKinley v. Scott. 49 N. C. 198; Dunlap v. Ingram, 57 N. C. 187; McKay v. Guirkin, 102 N. C. 23, 4. File at: http://files.usgwarchives.net/nc/craven/court/williamm789wl.txt This file has been created by a form at http://www.poppet.org/ncfiles/ File size: 8.2 Kb