Chambers v. . Davis

62 N.C. 152

• Court: Supreme Court of North Carolina
• Decided: January 5, 1867
• Status: Published

Opinion

Battle, J.

The only question as to which the counsel for the parties have asked our advice is, whether the language of the 34th clause of the testator’s will is imperative, or only precatory. The counsel for the defendants say that if, in our opinion, it is imperative, the intention of the testator shall be carried out, without regard to any other objection that might he made to it, arising out of the plaintiff’s condition as "a slave at the time when the will went into effect.

The first sentence of the clause would seem to indicate the purpose of the testator to leave it as a matter of humanity, rather than of legal obligation, on his executors to provide for the wants of his slaves. But when we notice that in the second sentence he sets apart the interest of a certain fund for their support, directs its application to that purpose, and disposes of any surplus which may remain unexpended at their deaths, we must conclude that the intention was to impose it as a legal duty on his executors to appropriate such interest to the use of the objects of his bounty. We hold, therefore, the clause in question to be imperative, and that the plaintiff is entitled to whatever sum may be found necessary as an annual support during life. There must be a reference to ascertain what that sum shall be.

Per Curiam.

Decree accordingly.