Lewis v. . Lewis , 46 N.C. 444 ( 1854 )

On the trial, the plaintiff having shown his appointment as administrator of Thomas Simpson, and that the slave in question was the increase of a woman named Lydia, who was in possession of the plaintiff's intestate, at the time of his death, in the year 1806, and having proved the value of the slave in question, and a demand:

The defendant gave in evidence the following deed of gift for the woman Lydia, to Sarah Lewis, the mother of the defendant, under whom he claimed title, viz:

STATE OF NORTH CAROLINA,} Bladen County. }

Know all men by these presents, that I, Thomas Simson, of the county and State aforesaid, planter, for and in consideration of the natural love and affection I bear to my daughter, Sarah Lewis, wife to Richard M. Lewis, have given, granted, bargained and delivered, and by these presents do give, grant, bargain and deliver, unto the said Sarah Lewis, the negro slaves Lidda, Bet, Jean, Nance, Jack and Tom, with the future increase of the females; and for the like consideration do grant, bargain and sell unto my daughter, Sarah Lewis, her heirs and assigns for ever, one hundred and fifty acres of land in said county, on the South side of Bryan's swamp, joining Peter Simmons line, the place where Richard M. Lewis now lives, with all improvements and hereditaments thereto belonging, to have and to hold the said bargained premises, and every part and parcel thereof unto the said Sarah Lewis, her heirs and assigns forever, in trust, for the use and occupation of myself during life, and from and after my death, to the sole use of the said Sarah Lewis, and her heirs and assigns for ever.

In witness whereof, I have hereunto set my hand and seal, this tenth day of August, in the year of our Lord one thousand eight hundred and three.

THOMAS SIMSON, [SEAL.]

Signed, sealed, and delivered in the presence of

JOSEPH NANCE, EDWARD SIMSON.

His Honor directed a verdict to be entered for the plaintiff, subject to his opinion upon the construction of the deed, and, after consideration of the question reserved, being of opinion with the defendant, ordered the verdict to be set aside, and gave judgment for the defendant.

Appeal to this Court. The deed, under which the defendant claims the slave in question, is inartificially drawn, but enough appears to show that the legal title to the negro, AEsop, is in him. The objection to the conveyance, raised by the plaintiff's, that, by the deed, a life estate, in the negro mentioned in it, is reserved to Thomas Simpson, the grantor, and being prior to our act of Assembly, of 1823, the whole interest in them remained to him. The common law does not allow a remainder in chattels to be engrafted in a life estate, the granting of a life estate consuming the whole interest. But, though this cannot be done by a common law conveyance, it may be done by will or by a conveyance to trustees, 2d Bl. Com. 398. From the phraseology of the deed of conveyance, it may well be questioned if it was not a conveyance of the present absolute title to the slaves to the daughter, and the life estate reserved only in the land. But, waiving that question, and admitting that the reservation did embrace the slaves, we are of opinion that the life estate did not absorb the whole interest in them. The conveyance was in trust. The language of the deed is, "To have and to hold the said bargained premises, and every parcel thereof, unto the said Sarah Lewis, her heirs and assigns forever, in trust for the use, occupation, and convenience of myself during my life, and from and after my decease, to the sole use of the said Sarah Lewis, her heirs and assigns forever." The deed, then, is a conveyance in trust to Sarah Lewis, for the use of the grantor for life, and after his death to her absolutely. The old gentleman is dead; and the defendant now holds the negro, Esop, as his absolute property. With trusts the common law does not meddle, nor can they be subject to its rules. There is no error.

PER CURIAM. Judgment affirmed.