After disposing of the plaintiff's appeal it was declared that the judgment debtor had to interest in and was entitled to no part of the moneys paid into the clerk's office by the executor, as devised under the testator's will, and further, that there was error in the ruling *Page 442 of the court that words descriptive of the subject-matter of the conveyance from Francis A. L. to the said Henry C., of date 9 December, 1870, do not embrace any interest given him in the proceeds of the lots sold. The present appeal brings before us certain other antecedent deeds passing between the parties, and raises an inquiry as to the title of the said Francis A. L. to the fund to be derived from the sale, when made, and his right to dispose of it at the time when he executed the deed.
The descriptive words used in these deeds and in an instrument made on 30 January, 1871, in the form of a deed, but without a seal to make it such in law, relating to the same subject, are essentially alike, sufficient, in our opinion, to embrace the pecuniary legacies to be raised by the sale of the lots.
The two deeds reciprocally passing between the said legates bear the same date, 14 April, 1870, without evidence as to priority of execution, are upon the consideration of the natural love and affection borne by the respective donors towards Henrietta, wife of said Francis, and a (564) small sum to give effect to the conveyance paid by the donees.
The object of both deeds is to provide for the feme covert, and accordingly her husband conveys his interest under the will upon a trust declared to be for her use and benefit during life, with power in her to direct a change of investment when deemed proper. At the same time the said Henry C. conveys, for the like consideration of his natural love and affection for the said Henrietta and her son (his nephew), Henry Cassidey, his interest in the same property, designating it in similar terms, and omitting some of that mentioned in his brother's deed, which, if not a repetition of that already mentioned, has no material bearing upon the present controversy.
To the description of the property in general terms as lots, found in both deeds, is subjected in this the further words: "being the propertydevised by James Cassidey, deceased, to Francis A. L. and Henry Cassidey inhis will," thus distinctly pointing to the lots as the source from which the legacies are to be drawn, and designating the interest intended to be transferred. The trusts declared are, that the said Francis A. L. shall permit the said Henry C. to possess and employ (enjoy clearly intended) during his life, and thereafter for the use and benefit of Henry, son of the trustee, and said Henrietta, his wife.
Following these in time comes the deed of 9 December, 1870, upon which we have commented in the other appeal, which is in form an absolute sale and conveyance for the sum of six hundred dollars.
The last of the series is what is denominated an indenture, but which, for want of seals to the signatures, is not such, and in it the donor, for his natural love and affection for the wife of his brother, Francis A. L., and the small consideration coming from the latter, assumes to convey *Page 443 the property to said Francis A. L. upon like trusts as those (565) declared in the last preceding deed.
We are now prepared to consider the defendant's exceptions:
1. We sustain the first exception, that the money interest given in the will are not within the terms of the two first deeds, and for reasons not necessary to be repeated.
2. The exception is well taken to so much of the ruling as relates to the descriptive words found in the unsealed instrument. It is true, a pure gift can be made effectual, as against the donor, either by an actual or a symbolical delivery of the personal article given, and this was impossible, for the land had not been sold; or by a deed which operates proprio vigore, in law or equity, as the subject-matter may admit. The present writing does not show a mere gratuity or indulged impulse of benevolence, but contains in form a contract for money paid. As such a recital sufficiently shows a contract to pass the title to real estate under the statute of uses, no sufficient reason occurs to us why it may not be available to carry into effect the intent of the parties to it. If it be a contract it passes not the fund as a legacy, but the right of the legatees to demand it when it comes into esse. Downey v. Smith, 2 Dev. Eq., 535; Ponton v. Griffin,72 N.C. 362; Millhiser v. Erdman, ante, 292.
3. We are of opinion that the said Henry C. is not entitled to a personal property exemption. The referee finds that he has been absent from the State for seven or eight years, and is employed upon a steamboat plying on the waters of Florida, and that he expects in the future to return to Wilmington.
Our Constitution and statute do not extend to such a case. The person must be a resident, actual and not constructive, to be entitled to the exemption. This is made clear by the section securing the homestead to insolvent debtors, when "owned and occupied by any resident of this State." Const., Art. X, secs. 1 and 2. (566)
The benevolent provision is for our own citizens — those who have a residence among us — and must be constructed as not embracing cases of mere domicile, where the rights incident to domicile may be retained until a domicile is obtained elsewhere.
There is error in the rulings pointed out, which, as was said in the appeal, requires the judgment to be reversed and a new trial had. It is so ordered.
Error.
Cited: Fulton v. Roberts, 113 N.C. 427. *Page 444