Dicken v. Cotton

22 N.C. 272

• Court: Supreme Court of North Carolina
• Decided: June 5, 1839
• Status: Published

Opinion

Gastow, Judge.

It is represented by the parties in this suit, that the negro man Eli refuses the gift of freedom, because of the condition to leave the State, which the law annexes to emancipation. The question, therefore, is not presented whether, since our act of 1830, (1 Rev. Stat. ch. 111, sec. 58,) a bequest of freedom to a slave is to'be deemed null, or construed an injunction on the executor to procure his emancipation, according to the provisions of that act.

The legacy to Eliza Thompson, having lapsed by her death before the testator, the negroes bequeathed to her, as well as the negro Eli, fall into the residuum of the testator’s estate; and the question is, whether that residuum is disposed of by. his.will. The defendant Irvin, and others, claim it, under the 9th clause of the will. We are of opinion, however, that the terms made use of in that clause, “the residue or balance of my money,” are not general enough to take in these negroes. Simms vs. Garrott, 1 Dev. & Bat. Eq. Cas. 395. They are therefore indisposed of by the will, and go to the next of kin.

The charge on the partial residue, bequeathed in the 9th clause, operates for the benefit of the other legatees. But none of the legacies are to abate unless the undisposed property should prove insufficient for the payment of debts.

Pee, Cueiam. Decree accordingly.