Sanderford v. . Moore , 54 N.C. 206 ( 1854 )

Mary Dean, by her last will and testament, bequeathed, amongst other devises and bequests, as follows: "I give and bequeath to my grandson, Marcellus Hilliard, one negro woman, Nelly, and her (207) child Hugh White, but in the event of the said Marcellus departing this life without lawful child, the said negroes, Nelly and Hugh White, are to be equally divided between Martha H. Sanderford and Frances A. Hilliard, to them and their heirs forever." Mary Dean, the testatrix, died in 1849, and James L. Terrell qualified as her executor, who delivered the slaves Nelly and Hugh White to the legatee, Marcellus.

Frances A. Hilliard died intestate, in the lifetime of her sister Martha A. Sanderford and her brother Marcellus, without having been married, leaving Martha and Marcellus her next of kin. Shortly after the death of Frances, her brother Marcellus died intestate, without leaving any "lawful child," having after her death sold and conveyed to the defendant, John C. Moore, the two slaves, Nelly and Hugh White — the purchaser having full knowledge (as is established by the testimony in the case) of Martha's and Frances' contingent interests. Within ten days after this purchase by Moore, he carried the slaves out of the State, to the city of Richmond, and there sold them, and it does not appear that the purchasers were known to the plaintiffs, or that the slaves were ever again within the limits of this State.

George A. Sanderford and his wife Martha, and John L. Terrell, administrator of Frances A. Hilliard, are the plaintiffs. The prayer of the bill is that the defendant account for the value of the slaves, Nelly and Hugh White, and for general relief.

The defendant objects to the plaintiffs' right to recover, upon the ground that the personal representative of Marcellus Hilliard is not a party to the bill, and he further contends that the plaintiffs' claim being a legal one, there was no ground for going into a court of equity. There was replication to the answer, commissions issued and proofs taken, and the cause, being set for hearing, was removed by consent to (208) this Court. The estate of Marcellus was determinable, being subject to a limitation over to his sisters, Martha and Frances, in the event of his death without leaving a child living at the time of his death.

Frances died leaving Marcellus and Martha her next of kin. Marcellus sold the slaves to the defendant, who had notice of the limitation over; the defendant carried the slaves to Richmond and sold them; afterwards Marcellus died without a child. The object of the bill is to follow the fund in the hands of the defendant. The right to do so is settled. Hales v.Harrison, 42 N.C. 299; Cheshire v. Cheshire, 37 N.C. 569.

What part of the fund are the plaintiffs entitled to? Martha, under the limitation over, is entitled to one-half. The defendant Terrell, the administrator of Frances, is entitled to the legal estate in the other half; but as he makes no suggestion of their being creditors of his intestate, Martha, as one of the next of kin, is entitled to one-half of his share; so she is entitled to three-fourths of the fund.

At the time he sold to the defendant, Marcellus was entitled not only to the determinable estate, but also to one-half of the share of his sister Frances. So the defendant, as assignee of Marcellus, is entitled to one-fourth of the fund.

The defendant insists that the plaintiff cannot have a decree, because the personal representative of Marcellus is not a party.

If the plaintiffs sought to recover the whole fund, and denied the fact of the assignment by Marcellus to the defendant, there would be some ground for the objection; but as they admit the assignment, and only ask for three-fourths of the fund, being content to leave (209) the other fourth in the hands of the defendant, there is no ground for the objection, because by the assignment the interest of Marcellus, as one of the next of kin of Frances, passed to the defendant; consequently at his death there was nothing to pass to his personal representative. Why, then, should he be a party? The only object for making him a party would be to give him an opportunity to deny the fact of the assignment; but as to that, the parties are agreed.

The defendant also insists that the plaintiffs ought to have sued at law, and have no equity against him. If the slaves could be found, an action at law would lie, because the plaintiffs are now the legal owners; but at the time the defendant took the slaves to Richmond and sold them hewas the legal owner and the plaintiffs had only a future contingent interest. So, as against the defendant, their only remedy is to follow the fund.

The plaintiffs are entitled to a decree for three-fourths of the fund, after deducting a reasonable allowance for the expense of carrying the slaves to Richmond and making the sale. As their equity is to follow the fund, they must be content with it, and have no right to hold the defendant responsible for the actual value; that would be treating him as a wrong-doer, whereas the ground of the bill is to treat him as a trustee of a fund in which the plaintiffs have an interest.

PER CURIAM. Decree accordingly.

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