Tims v. . Potter

1 N.C. 12

Opinions

This case was that of a gift of one Glover to his daughter, of a negro woman, reserving the use of that negro during his life. Judgment was obtained against Glover, and an execution levied on the negro. Potter became the purchaser; Tims intermarried with the daughter of Glover, and after Glover's death brought suit for the wench and her children. On a verdict for the plaintiff, the question, as to the children born during the life estate, was reserved.

The following cases were relied upon for the defendant: Tissin onTisser, 1 P.W., 500; Nichols v. Osborn, 2 P.W., 419; Taylor v. Johnston,ibid., 506; Choworth v. Hooper, 82, Brown's Reports det., 1780, 2 Black., 390; Puffendorff, lib. 2, ch. 4, p. 11; 2 P.W., 42; 1 P.W., 572.

The counsel for the plaintiff combatted these authorities by showing that the principles upon which they were determined would not apply to the present case. That the devise over in the case of Tisser depended on a contingency, etc. In some of the other cases it depended upon a condition. That in the case of money, interest was the sole produce or profit; the principal not impaired thereby; otherwise of a negro: where a use is reserved or devised, the property certainly passed and vested in the donee, as remainderman; the intermediate estate is satisfied by the labor, etc., etc., the doctrine of Puffendorff related to the rights of war, etc., etc., This case has been twice ably argued. My mind is fully satisfied, and I am sure without bias. When this case was first stirred, I inclined to be of opinion for the defendant; but when the authorities and reasons were examined, on the second argument, they were evidently inapplicable to the present case. We have (13) taken great consideration of this cause, and are now clearly of opinion that the remainder carries with it the increase. The intermediate estate is satisfied fully by the labor of the negro. —Labor is a use that may be commanded by the person who has the estate;breeding is the order of nature, not of the master. This use must be such a use as the owner may command. The life estate might exhaust the whole estate, the remainderman would take an encumbrance instead of a benefit. As to the children being an encumbrance on the life estate, the donee or legatee is a volunteer, and people are generally of a different opinion as to thinking a breeding wench a loss.