Granville County NcArchives Court.....Mary Lanier, John Taylor V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 26, 2009, 8:32 am

Source: Nc Reports
Written: 1819

John Taylor v. Mary Lanier and others

From Granville

May Term 1819

A father, for the purpose of advancing his son in life, conveys to him his 
manor plantation and sundry slaves, reserving to himself and wife the use of 
such lands and slaves during their joint lives and the life of the survivor of 
them; and in the conveyance "it is agreed between the father and son and is to 
be taken as a principal part of their contract, that the son is to provide 
for, maintain, keep, succour and nourish the father's daughter Mary, during 
her natural life, so that she do not suffer or lack for necessaries in any 
manner whatsoever." The support and maintenance of Mary is not a charge upon 
the property conveyed to the son, but a personal charge upon the son.

There is no direction that the maintenance shall be raised out of the rents 
and profits of the property, nor any expression which takes the case out of 
the principles of an ordinary trust, binding only the conscience of the son.

A covenant before marriage to settle certain lands upon the wife, amounts to a 
specific lien upon those lands in the possession of the devisee; but a general 
covenant to settle lands upon the wife, of a certain annual value, gives no 
remedy to the wife but as a specialty creditor.

The father after making the conveyance aforesaid to his son, made his will and 
bequeathed to his daughter Mary, during her life "a bed and furniture, a 
horse, saddle and bridle, two negroes, &c, and directed that after her death, 
the property so bequeathed should be sold and the money he equally divided 
between testator's children, except the aforesaid son, and then notices that 
Mary is to have her maintenance from the son, according to the contract in the 
deed to him." The property given to Mary in this bequest, is in addition to 
the maintenance provided for her in the deed to the son, and is not to be 
taken into account for her support and maintenance.

The rule of considering a legacy as satisfaction of a portion, arises from a 
presumption that it was so intended by the testator; and that like all other 
presumptions may be repelled or confirmed.

If portions be provided by any means whatsoever, and the parent gives a 
provision by will for a portion, it is satisfaction prima facie, unless there 
be circumstances to shew it was not so intended.

This was a case agreed, in which the material facts were as follows. - Thomas 
Lanier, on 2 November, 1790, executed to his son, William Lanier, a deed of 
gift, in the following words, to-wit:

To all to whom these Presents shall come - Greeting:
Know ye that I, Thomas Lanier, of Granville County, in the State of North 
Carolina, for and in consideration of the love, good will and affection, which 
I do owe and bear towards my son William Lanier, and for his advancement in 
life, do make over and convey and confirm unto the said William my manor 
plantation and houses, together with my lands adjacent, containing in the 
whole about nineteen hundred acres, be the same more or less, lying on Little 
Nut-Bush in said County; also eleven negroes, viz: Jeffrey, Young, Jack, &c. 
saving and reserving nevertheless my life in and to the said land and negroes, 
to use, occupy, possess and enjoy the free use, and exercise thereof, for and 
during the said term of my natural life, and also reserving to my wife Judith 
during her natural life, free and clear of interruption, the following part 
and parcel of the before mentioned land and houses, viz: beginning, &c, which 
said land and negroes I do hereby give and make over to my said son William 
Lanier, his heirs and assigns forever; but to remain and be agreeable to the 
true intent and meaning herein set forth. And it is further concluded and 
agreed upon between the said Thomas Lanier and his son William, and is to be 
considered as a principal part of this contract, that the said William provide 
for, maintain, keep, succour and nourish my daughter Mary during her natural 
life, so that she do not suffer or lack for the necessaries of life in any 
manner whatsoever. In testimony, &c. 
                            THOMAS LANIER, (Seal)
witness, &c.

Thomas Lanier delivered to his son William the negro slave and part of the 
land shortly after the execution of this deed, and several years before his 
death; and during this time no claim for the support and maintenance of his 
daughter Mary, was set up against William. Thomas Lanier by his last will 
bequeathed as follows, to-wit: "I lend unto my daughter Mary Lanier, for and 
during her natural life, one feather bed and furniture, that which she sleeps 
on, also a good riding horse, and a negro woman by the name of Lucy and her 
increase; and a negro fellow by the name of Burges, one saddle and bridle, the 
negro Burges to be hired out every year during her life: also two cows and 
calves, &c. After her decease, all that I have lent her, to be sold by my 
executors, and the money arising therefrom to be equally divided between my 
surviving children now living, except my son William, who is not to have any 
part whatever of what I lend to my daughter Mary. And my daughter Mary is to 
have her maintenance from my son William according to contract made in my deed 
heretofore to him." The complainant and six of the Defendant were purchasers 
with notice.

Two questions were made in this case, 1st, whether the support and maintenance 
of Mary Lanier, be a charge upon the property conveyed by Thomas Lanier to 
William, or be only a personal charge upon William. 2d, whether the property 
bequeathed to Mary be subject to be taken into account for her support and 
maintenance, in aid of the property mentioned in the deed to William.

This case, which, from various causes, had been continued in this Court since 
July, 1812, was decided at this term.

Taylor, Chief-Justice: The deed executed by Thomas Lanier, to his son, 
William, purports to be made in consideration of natural love and affection, 
and for his advancement in life: and after describing the property, and 
reserving a life estate to himself in the land and negroes, and a life estate 
to his wife in part of the land, these words follow, "but to remain and be 
agreeable to the true intent and meaning herein set forth: and it is further 
concluded and agreed upon between the said Thomas and his son, William, and is 
to be considered as principal part of this contract, that the said William 
provide for, maintain, keep, succour and nourish, my daughter Mary, during her 
natural life, so that she do not suffer or lack for the necessaries of life, 
in any manner whatsoever." The words first quoted, are evidently referable to 
the life estates reserved to the grantor and his wife: and the question is, 
whether the other words making a provision for the daughter Mary, operate as a 
specific lien upon the property, so as to make it chargeable in the hands of 
bona fide purchasers, but with notice. And I am of opinion that this is only a 
personal charge upon the son; for beside that there are no words which can be 
fairly construed as amounting to a lien, it is improbable that the covenanter 
should have designed so small a sum in proportion as was necessary to the 
maintenance of his daughter, to become a lion upon the whole of this property 
in the bands of a purchaser. The supposition seems to be inconsistent with 
what he professed to be, the consideration, viz., the advancement of the son, 
and with the absolute control of the property, which is given to the son by 
the deed. There is no direction that the maintenance shall be raised out of 
the rents and profits of the property, nor any expression which takes the case 
out of the principles of an ordinary trust, binding only on the conscience of 
the son. I have looked into the cases of covenants, which have been contended 
in this Court, to run with the land, and find many much stronger than this, 
where the covenant was held to be merely personal. A covenant before marriage 
to settle certain lands upon the wife, amounts to a specific lien upon the 
land in the possession of the devisees: but a general covenant to set the 
lands upon the wife, of a certain annual value, gives no remedy to the wife, 
but as a specialty creditor. 1 P. Wins. 429. If A. covenant to pay an annuity 
to J. S. he shall not deduct for taxes, for the charge is only on the person 
of the covnantor. 2 Salk, 616. This case cannot be distinguished from the 
grant of an annuity which may be chargeable upon lands, if such a provision is 
made in the deed, but is in all other cases, only a personal charge. If A. 
devise land to B. on condition to pay C. a sum of money, and there be no 
clause of entry, this is no charge on the estate to give the legatee of the 
money a lien on the land, but, the heir at law may enter and take advantage of 
the condition; but in Equity he is considered only as a trustee for the 
legatee. 1 Ves., 423.

With respect to the other question in this case, I take it to be very clear, 
on the ground of intention, that, the bequests made to the daughter Mary are 
in addition to the maintenance provided for in the deed; because the testator 
takes notice that she is to have maintenance from his son, according to their 
contract; and this he does immediately after disposing of Mary's legacy after 
her death. This completely negatives every presumption of his having forgotten 
the provision for maintenance; and is nearly as strong as if he had expressly 
declared that the bequest should be additional to it. It also affords an 
answer to all the cases on the subject of double portions; for on the 
supposition that they were applicable to this case, yet it is admitted by them 
that the rule of considering a legacy as satisfaction of a portion, arises 
from a presumption that it was so intended by the testator; and that, like all 
other presumptions, may be repelled or confirmed. The rule, as laid down in 
one of the latest cases is, that if portions are provided by any means 
whatsoever, and the patent gives a provision by will for a portion, it is a 
satisfaction prima facie, unless there be circumstances to show it was not so 
intended. 3 Ves. 516. Here. I think, the strongest circumstance appears upon 
the face of the will; and, consequently, that nothing ought to be deducted 
from the burthen placed upon William, of maintaining his sister Mary by reason 
of the request; which ought to be considered as an added bounty of the 
testator, designed to place within her reach certain moderate enjoyments 
beyond the limits of a bare maintenance.

Cited: Haglar v. McCombs, 66 N. C. 350; Wellons v. Jordan, 83 N. C. 375; 
Perdue v. Perdue, 124 N. C. 163; Ricks v. Pope, 129 N. C. 55.


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