Opinion
(Spring Riding, 1802.)
1. A remainder in slaves belonging to a wife will not belong to the husband's representatives, if he die before his wife during the continuance of the particular estate.
2. Where the remainder in slaves belongs to two or more femes, the acquisition of the life estate by the husband of one of them will not cause a merger so as to give him his wife's share in remainder.
3. One tenant in common cannot sue another in trover.
DETINUE for a negro. A. devised to B. several negroes for his life, and after his death to his (B.'s) daughters. One of the daughters married, and B. sent the negro in question to live with her. His other daughters also married, and he sent some of the negroes to live (187) with each. The husband of the daughter first married died; then B. died, and a division took place under the will, leaving out the negro in question.
All the daughters were entitled in common to the remainder of this negro. B. could only pass his interest for life to his son-in-law, not that of his daughter. Neither could there be any merger; for the estate in remainder was not correspondent to the estate for life, this latter belonging to the son-in-law, the former to all the daughters. Neither did his wife's share in the remainder vest in the son-in-law who died; for a husband is not entitled to the remainder of his wife. Had there been a drowning of the life estate, the husband of the deceased daughter would have been entitled to her share, and the person claiming under him tenant in common with the plaintiff, and could not have been sued by them in this action.
NOTE. — On the first point, see the references in the note to Neale v. Haddock, ante, 183.
On the last point, see Campbell v. Campbell, 6 N.C. 65 — unless the joint property is destroyed, and the disposition of a perishable article by one joint tenant, which prevents the other from recovering it, is equivalent to its destruction. Lucas v. Wasson, 14 N.C. 398.
Cited: Grim v. Wicker, 80 N.C. 344.