James Cole died sometime about 1848, leaving a will in which he bequeathed as follows:
"I give and bequeath to my granddaughter, Elmira Braswell, my negroes Patty, Harriett, Fanny, Amy, Sarah and Miles, and their increase. Also a bond I hold on B. W. Braswell for $860, with interest thereon, two feather beds, and furniture. At my death, my desire is that my executors take possession, hire out the negroes, and apply the proceeds to the use of my granddaughter, Elmira Braswell. I also give to my granddaughter, Elmira, at the age of twenty-one years, my tract of land I bought of Henry Tatum, with the exception of the home plantation, which I grant him and his wife during their natural life the use of: and if my granddaughter, Elmira, should die before she arrives at the age of twenty-one years, then the property bequeathed to her is to be equally divided between the heirs of my two daughters, c."
Before the death of the testator, Blake W. Braswell removed to Mississippi, where the plaintiff, an infant, and her guardian now reside; and this bill was filed against James T. Morehead, surviving executor of Cole, and the legatees in remainder, praying the opinion and advice of the Court upon the above clause, and asking for a decree authorizing the guardian to remove the negroes and other personal property bequeathed to his ward to the State of Mississippi. And the bill also prays that the executors be decreed to account for the hires and profits of the slaves and other personal estate given to the plaintiff.
The defendants, in their answers, admit the facts set forth in the bill, but insist that the removal of the slaves and other property beyond the jurisdiction of the Court, would be prejudicial to the rights of those in remainder; and that the executors are not bound to account for the hires and profits, which should be retained for the benefit of the remaindermen, in the event of the infant's dying under twenty-one years of age. The only questions presented by the (28) pleadings, upon which the opinion of the Court is necessary, are —
1st, Whether the plaintiff can, by her guardian, under the sanction of the Court, take the slaves and other personal property bequeathed to her by her grandfather, and carry them to the State of Mississippi, where she now resides, notwithstanding the executory devise to her aunts, in the event of her dying under the age of twenty-one years?
2ndly, Whether she is entitled, during the period of her infancy, to the hires of the slaves and interest and profits of the other personal estate, bequeathed to her? or are said hires and profits to accumulate for her aunts, in the event provided for?
We think that there is no difficulty in either question. The Court certainly would not authorize the particular tenant of a slave, or other personal chattel, to carry such slave or chattel beyond its jurisdiction, against the wishes of the remainderman. Such an act would be in direct opposition to the power which it claims, and in a proper case always exercises, of restraining the particular owner from carrying the slave or other chattel out of the State. Wilcox v. Wilcox, 36 N.C. 36; Brown v.Wilson, 41 N.C. 558. Owners of executory bequests, and other contingent interests, stand in a position, in this respect, similar to vested remaindermen, and have a similar right to the protective jurisdiction of the Court. Brown v. Wilson, ubi supra.
The plaintiff is clearly entitled to the hires and profits of the slaves and other property bequeathed to her, until the event shall happen, upon which they are limited over to the aunts. To hold otherwise, would be to consult more the interest of the secondary than the primary objects of the testator's bounty. This is entirely inadmissible, and we think the cases cited in Fearne Remainders, 554, sec. 16, fully support our opinion.
There must be a reference to take the accounts, and the Master must inquire whether to take the accounts, and the bequeathed to the plaintiff, was, or might by proper diligence have been collected by the defendant, Morehead.
PER CURIAM. Decreed accordingly.
Cited: Williams v. Smith, 57 N.C. 256; Gordon v. Lowther, 75 N.C. 195;Jones v. Britton, 102 N.C. 170; Peterson v. Ferrell, 127 N.C. 170. *Page 37
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