Summary
In Ingram v. Terry, 9 N.C. 122, the same doctrine is stated; and a bill by one taking an interest in the nature of a remainder, against the first taker as his trustee, was dismissed upon the ground that the title was a legal one, and that the remedy was at law.
Summary of this case from Burnett v. RobertsOpinion
June Term, 1822.
1. When a bequest of a negro woman is made to A., and of her issue, if she should ever have any, to B., the assent of the executor to the legacy to A. is an assent to the legacy to B. also.
2. If a bill be brought by B. against A. to compel the delivery of such issue to B., the bill will be dismissed.
3. In the case put, A. and B. constitute but one owner and the executor is not bound to assent to the legacy unless he gets bond for the value of the whole interest.
THE bill set forth that the complainants, Drusilla Ingram and Hannah Ingram, were the grandchildren of one William Terry, who, on 20 March, 1805, made and published his last will and testament, containing, among other clauses, the following: "I give and bequeath to my son, Matthew Terry, two negroes, viz., Nell and Boston, to him and his heirs forever; and should the said negro wench Nell have any children, it is my desire that they be given to Benjamin Ingram's two youngest daughters, Hannah and Drusilla." That the executors to said will assented to the legacy of the negro woman Nell to Matthew Terry, who accordingly took her into his possession; that after the executors had assented as above stated, Nell had issue, a male child, and that these complainants had demanded of one of the defendants, Matthew Terry, the possession of such child, and had also applied to the executors for their assent to the legacy of Nell's children to these complainants; that such assent had been refused, and that Matthew Terry refused to deliver the possession of Nell's child to the complainants. To this bill there was a demurrer for want of equity in the court below, which was sustained and the bill dismissed. Complainants appealed.
I cannot but view this as a bill brought upon a mere legal title. When the executors assented to the legacy of the mother, they thereby assented to the bequest of the issue, and they lost all control over the property as executors. The claim lost its legatory character, and even viewing this as a residuary interest, which I think it very much resembles as far as respects the present question, the result will be the same; for I cannot think that the old law upon the subject is at all altered by the acts of our Assembly, requiring legatees to give refunding bonds. Those who argue in favor of the alteration contend that a legatee for life or other particular interest can compel an executor to assent to his legacy upon giving bond for the value of the particular interest only. I would admit that if the law were so it would follow. But it appears to me that the executor is not bound to assent to a legacy unless he gets bond for the value of the whole interest — that all the claimants, both immediate and ulterior, represent but one full owner. Nor do I think it reasonable that the law should divest the executor of the possession, and after the determination of the particular estate throw on him the burden of regaining it for the purpose of giving it over to those who have a residuary interest in it.
PER CURIAM. Bill dismissed.
Cited: Burnett v. Roberts, 15 N.C. 83; Conner v. Satchwell, 20 N.C. 206; Saunders v. Gatlin, 21 N.C. 94; Howell v. Howell, 38 N.C. 526; McKoy v. Guirkin, 102 N.C. 23.