The facts of the case appeared to be these:
James McCombs, on 15 May, 1842, made his will and appointed the defendants his executors, and bequeathed as follows: "As for my negro woman Hannah, that I let my daughter Jane Kerr have the use of, and the increase of the said Hannah that she shall have after this date, I give to my daughter Jane's increase, that she may bear after this date, and the said Hannah to remain with my said daughter Jane until done bearing, then at her own disposal." The testator's daughter, Jane Kerr, after the date of her father's will, had issue two daughters, Mary, who married William Acheson, and Elizabeth Kerr, and they are the plaintiff. The slave Hannah, after the date of the said will, had two sons. Hannah with her children remained as they were directed by the will to remain, with the testator's daughter, Jane Kerr. And the executors assented immediately to the said legacy. William Kerr, the husband of Jane, and the father of the two plaintiffs, Elizabeth Kerr and Mary Acheson, left his wife and went to unknown and foreign parts, and carried, or caused to (555) be carried out of the jurisdiction of the court the said two negro boys, the children of Hannah. The bill seeks to subject the executors of the said will to account for the said two negro boys. The defendants in their answer insist that the testator's daughter, Jane, had a legatory interest in the slave Hannah, at least for her life, as it was uncertain whether Hannah would cease to have children before the termination of the life of Jane; and that the assent of the executors to her legacy for life in Hannah, who at that time had no children born that could pass by the said clause in the will, was an assent to all the subsequent takers of a legacy, limited over by way of remainder or executory devise, and turned all their estates that were in remainder, as well as the life-estate of Jane, into legal estates as soon as the contingency happened on which they rested. We think the law is as contended for by the defendants, and that it is a complete answer to the demand of the plaintiffs. Dunwoodie v. Carrington,4 N.C. 355; Alston v. Foster, 16 N.C. 337; Burnett v. Roberts, 15 N.C. 87;Etheridge v. Bell, 28 N.C. 87. But this rule would not hold when, after the death of the first taker, the executor has by the will a trust a to perform, arising out of the property, which must therefore be subject to his control and of course *Page 438 he must have the legal title. Ibid. S. P.; Allen v. Watson, 5 N.C. 189. By the will of James McCombs, his executors were not placed as special trustees of the increase of Hannah for the benefit of the after born children of the daughter, Jane Kerr. It is to be regretted that some person had not acted as next friend to Kerr's children.
But we must say that the plaintiffs have no equity to make the defendants account for the said negroes, which were vested in the plaintiffs without any further act by the executors. (556) And the bill must be dismissed with costs.
PER CURIAM. BILL DISMISSED WITH COSTS.
Cited: Hurdle v. Riddick, 29 N.C. 89.