Snowden v. . Banks

31 N.C. 373

• Court: Supreme Court of North Carolina
• Decided: June 5, 1849
• Status: Published

Opinion

Ruffin, C. J.

The gift is specific of a particular negro by name. Of course, if the testator had no such negro, the gift would necessarily fail. It is equally well settled, that, if he had the thing at the making of the will, and it be afterwards destroyed, or disposed of by the testator, the legacy likewise fails by what is called an ademption. There is in neither case any thing to answer the description in the will; and therefore the will passes nothing. It is said, indeed, that this testator kept the identical money got for the negro, and intended the daughter to have that, instead of the negro. That is very probable ; but, if it were true, the testator never put that intention into the will, so as to become a part of it, and enable the plaintiff to make this claim under a testamentary disposition — as she must do in this suit. It is impossible, that, under the gift of a specific negro, a sum of money can pass; and therefore no intention to that effect can be averred against the express words of the will.

Per Curiam. Decree affirmed with costs.