Opinion
(December Term, 1864.)
1. Testator bequeaths slaves to A., B., and C. He directs A., B., and C. to purchase a tract of land, on which the slaves were to live, and to cultivate it. The executors are directed to pay to A., etc., $500 for the purpose of stocking the land.
2. This is a quasi emancipation, and is void, independently of the act of 1860, ch. 37.
3. Testator gives to his wife all his slaves except those bequeathed as above stated, and concludes his provision for her by giving her all his "property and estate of kind and description" "which is not hereinbefore or hereinafter excepted or disposed of." This is a special residue, and the slaves intended to be given to A., etc., and the legacies intended for their benefit, belong to the next of kin of the testator (his widow having died) after payment of his debts; for the payment of which they constitute the primary fund.
THIS was a suit removed from the Court of Equity for NEW HANOVER County to this Court for trial.
Dr. Frederick J. Hill died in 1861, having made his will, which has been proved by his executors, of whom the plaintiff Thomas C. Miller is one. The will contains the following disposition: "I will, devise, bequeath, and direct that my executrix and executors hereinafter named purchase in the county of Chatham, North Carolina, 100 acres of land, the location of which I desire my friend, Henry A. London, of Pittsboro, to make, and to be paid for out of my estate. And I give, devise, and bequeth [bequeath] the said 100 acres to my worthy friends, Henry A. London, Frederick S. Davis, William E. Boudinot, and Thomas C. Miller, them and their heirs and assigns; and I also give, devise, and bequeath unto my said friends, etc., my faithful and trusty servant, Charles, and his wife, Louisa, and his son, Jim; and I hereby direct that my executrix and executors pay over to my said friends, etc., out of my estate, the sum of $500, to be laid out by them in stocking said farm of (629) 100 acres, and that Charles and his wife, Louisa, and their son, Jim, live on said farm and cultivate it."
Another clause of his will is as follows: "I also give, etc., to my wife all my negroes in fee, except Charles and his wife, Louisa, and their son, Jim, hereinbefore disposed of"; and he concludes the provision made for his wife by this clause: "and finally I give, etc., unto my said wife all and every kind and description of property or estate, real, personal, or mixed, of every kind whatever, of which I may die seized or possessed of, or entitled to, and which is not hereinbefore or hereinafter excepted or disposed of."
The bill was filed for the purpose of having the advice of the court on the parts of the will set out. The answers admitted the facts stated in the bill, and the cause was set for hearing on the bill and answers.
Moore for plaintiffs.
No counsel for defendants.
This will was filed by the executors of the late Dr. Frederick J. Hill for the purpose of obtaining the advice and direction of the court as to the true meaning and effect of certain clauses of his will. The case has been fairly presented to us by the plaintiffs' counsel, and we are satisfied that the construction contended for by him is correct.
The bequest in favor of the slaves, mentioned in the pleadings, was manifestly for their quasi emancipation, without being carried from the State, and is, therefore, void as being against the often declared policy of the law. See, among other cases, Lea v. Brown, 56 N.C. 141. The residuary clause in favor of the testator's wife is shown, by the same case of Lea v. Brown, to be a special one, which does not (630) include the slaves nor the legacies intended to be given for their benefit. The effect of this is that the said slaves, and the legacies intended for them, are undisposed of, and go to the next of kin; forming, however, the primary fund for the payment of debts and general legacies. Kirkpatrick v. Rogers, 42 N.C. 44; Swann v. Swann, 58 N.C. 299.
As the land directed to be provided for the slaves cannot be appropriated for those purposes, it cannot be purchased at all; and this disposes of all the questions asked in relation to it. So far as the money with which the purchase was directed to be made, as well as the money with which it was directed to be stocked, is concerned, it is the same as if the clause was stricken from the will.
The act of 1860, ch. 39, which prohibits the emancipation of slaves by will, need not be invoked in aid of this construction which we have put upon the will, as the result may be the same without it.
A decree may be drawn in accordance with this opinion.