This cause came on, upon a motion to set aside the (523) sequestration and ne exeat, which had been ordered by a
Judge out of court upon the bill and affidavit of the plaintiffs. The following is the case as presented by the bill and answers.
John Howell, by his last will and testament, devised the whole of his estate, both real and personal, to his wife, Mary Howell, during her life or widowhood, and after her death or widowhood he points out how the property shall be divided. Joshua Howell and John Howell are the executors of the will, and assented to the bequests of Mary Howell. The bill is filed to compel Mary Howell and the other defendants to give security for the forthcoming of the property upon the termination of the life-estate. The plaintiffs state "that Mary Howell is old and infirm, easily imposed on the shrewd and designing men — that she is not now managing the estate, so as to secure the rights and interests of the remaindermen — that Jesse Spurling, the father of some of the plaintiffs, and husband of Elizabeth Spurling, one of the plaintiffs, sold and conveyed to one Joshua Beam all the interest of his said wife Elizabeth, in the negro Jude and her children, and that since his death, the said Beam hath taken possession of the negroes; and the plaintiffs are fearful that the said Beam will make way with, dispose of, or convey the said negroes beyond the jurisdiction of the Court. The *Page 413 bill further states that Mary Howell has delivered over the whole of the property to one John Tucker, who manages it for her, and has the negroes in possession or has hired them out; and that one of them is hired to work in a gold mine, whereby his value will be impaired, and that they have been informed that said Tucker has made some efforts to remove the negroes out of the State; that he claims as his own some of the other property belonging to the estate — that he is a cunning, artful, and tricky man, and that the property is not safe and secure under his management and direction. The bill further charges that Betsy Howell, one of the daughters, and a legatee under the will of John Howell, intermarried with one Clayton Ledford, who has got into his possession the negro (524) woman Minty and her four children, and claims them as his own; and the plaintiffs are fearful that he will make way with the negroes, so as to defeat the remaindermen of their rights. The bill then charges that Mary Howell is committing waste on the lands devised to her for life, by permitting her servants to cut down and destroy the timber, trees, etc."
The defendants file separate answers. Mary Howell denies expressly that the estate in her hands has been mismanaged, or is wasting, but avers it is now more valuable than when she received it; admits that she has put into the hands of Ledford, who married Betsy Howell, the negro woman Minty and her four children, the eldest not more than six, he paying five dollars a year to her; that she has also hired to Joshua Beam the negroes bequeathed to Elizabeth Spurling, and that she does not believe either of them claims any interest in the negroes except as hires — denies she has, or that they have, as far as she knows, any intention to remove the negroes beyond the jurisdiction of the Court. And, as to the waste of the land, she avers that the tenant was put on it by Joshua Howell, one of the executors, and one of the plaintiffs. Ledford admits the possession of the negroes by hire, from Mrs. Howell, and Beam does the same, and each of them denies, that during the life of Mrs. Howell, they claim the negroes in any other way than as hirers under her, and reserves the question, as to what will be their title, after the death of Mary Howell, Joshua Beam admits he purchased the remainder in the negro Jude and her children, after the death of Mary Howell, from Jesse Spurling, the husband of the plaintiff, Elizabeth Spuring; and that he is now in possession, under Mary Howell's life-estate, having hired them of her. He denies any intention to remove the negroes beyond the limits of this State, or that he ever said so. John Tucker admits his agency under Mrs. Howell, and says *Page 414 that the property has been well managed and is now more valuable than when it came in his possession; denies all title to the property or any portion of it, except his annual stipend, and all intention, or (525) that he has made any preparation to remove it or any portion of it. The bill prayed a sequestration and ne exeat which was granted. Upon the filing of the answers, replication was taken by the plaintiffs, the case set for hearing and transmitted to this Court. The principles, which govern a court of chancery, in granting ne exeatsor sequestration, in cases of remaindermen seeking redress in cases of this kind, are fully laid down and established in the case of Sutton v.Craddock, 16 N.C. 134. Formerly, the court of chancery considered the remainderman as entitled, as a matter of right, to security from the tenant for life for the forthcoming of the property. But it was found that great oppression and injustice were very often operated. Such security is not now granted, simply quia timet, but only when a case of danger is shewn to exist. Wms. Exrs., 859. Toley v. Burnall, 1 Bro. C. C., 279. The bill must shew, not only that the complainant fears the property is in danger, from some act or contemplated act of the tenant for life, but it must set forth the grounds, upon which the apprehension rests, that the Court may see that the applicant has good cause for claiming its aid.
In all cases of a devise of personal chattels to one for life, with remainder over, the tenant for life will be entitled to the possession of the chattels, upon giving an inventory of them, admitting their reception, and that he is entitled to them only for life after which they belong to the person in remainder. And an executor may exact such an inventory; indeed, it is his duty to take it before he assents to the bequest for life. Slaning v. Styles, 3 P. Williams, 336. Luke v.Burnett, 1 Atk., 471. In this case the executors assented to the legacies generally, as they set forth in the bill, without requiring any inventory from Mary Howell, the tenant for life, nor do they now ask for it. The plaintiffs charge in their bill no specific acts of the (526) defendants, upon which they ground their fears of the safety of the property, but such only as the tenant for life, and those actually in possession had by law a right to do. They do charge, it is true, that they fear the *Page 415 property will be removed beyond the jurisdiction of the Court, but they produce no proof of acts done or declarations made by the defendants to sustain their allegation, and it is met by a full denial from all the parties defendant. Mrs. Elizabeth Spurling and her children are made parties complainant to the bill, upon two grounds: the first, that Jesse Spurling, the husband of Elizabeth, could not, during the continuance of the particular estate, dispose of the negro Jude and her children, so as to defeat his wife's estate; and, secondly, that Mrs. Spurling herself had but a life-estate in Jude, the remainder being in her children. And if either proposition be true, then the plaintiffs have a right to the aid of this Court in securing the property, for it is very evident from the answer of Joshua Beam, that his purchase from Jesse Spurling was of the negroes themselves, and not simply a remainder. There can be no doubt that the devise of the negro Jude, after the life-estate to Mary Howell, is in this State good, as an executory devise, and, upon the assent of the executor, vests the estate for life in the first taker, with a legal remainder over. It is, therefore, a vested remainder in the remainderman, and subject to all the liabilities of such an estate. This doctrine has been too long established in this State, and is sustained by too many decisions of this Court to be now disturbed or questioned. Dunwoodie v. Carrington, 4 N.C. 355; Ingram v.Terry, 9 N.C. 122; Alston v. Foster, 16 N.C. 337; Jonesv. Zollicoffer, 4 N.C. 645. These cases establish the principle that an assent by an executor to a life-estate is an assent to the estate in remainder, and that the latter is a vested legal estate. The estate of Elizabeth Spurling, therefore, in the negro Jude was not an equity, nor a mere possibility, but a vested remainder in a chattel not consumed in the use, and therefore capable (527) of being assigned. Burnett v. Roberts15 N.C. 81. Could Jesse Spurling assign the negro Jude, so as to defeat the claim of his wife, Elizabeth? Mary Howell the tenant for life, is still in being and Elizabeth Spurling has survived her husband. That a husband may assign every chattel interest of the wife, whether immediate or expectant, which from its nature is assignable, as if the interest was the husband's in his own right, is established in England by the highest authorities. 3 Thomas Coke, 333, note m. 1 Roper on Property, 236. The only exception to the rule is, where the property is so limited to the wife, that it can not possibly come into possession during the coverture. In Burnett v. Roberts, the husband had sold the property, absolutely, before the life-estate expired, and they both lived until after that event took place. In the present *Page 416 case the husband died before the tenant for life, leaving his wife still living. Is the case thereby altered as to the operation of the principle? We think not. The Chief Justice, in delivering the opinion of the Court in the case last referred to, intimates very strongly that it would not; but the point, not arising, was not decided. The question was fully presented in the subsequent case of Knight v. Leake, 19 N.C. 133. William Hicks, by his will, bequeathed to his daughter Frances, for life, a negro girl named Grace, with remainder to her children. Frances, the legatee for life, was married to Moses Knight, who took possession of Grace and her child Bob, the subject of the controversy, with the assent of the executors. A judgment was obtained against Knight and Caleb Curtis and Daniel McIntosh; and the fi. fa. issuing on that judgment was levied on Bob. Mrs. McKnight, the tenant for life, was then alive, as well as her four children, who were entitled to the remainder in Bob. Two of these children, the wives of Daniel McIntosh and Caleb Curtis, were plaintiffs in the action. At the sheriff's sale under the execution, the defendant purchased Bob; and the action was in detinue to (528) recover him. It was contended on behalf of the plaintiffs, that the husbands, McIntosh and Curtis, had not such an interest, as was liable to be sold under a fi fa. The Court decided the rule of law to be, that "all vested legal interests of the debtor, which he himself can legally sell, in things, which are themselves liable to be sold under a fi.fa., may be so sold." In this proposition, in relation to the case before them they assume, that the husband had such an interest as he could sell. In a subsequent passage they leave nothing to inference, but declare that a husband, jure mariti, has such an interest over the vested legal interest of his wife in a chattel, real or personal, of which a particular estate is outstanding, that he can sell such interest so as to transfer it completely to the purchaser. Such, the Court says, is not the effect of an assignment by a husband of his wife's equitable interest in a chattel, in which she has not the right of immediate enjoyment. It is perfectly well settled that a vested remainder in a slave, dependent upon the estate for life in another, is a vested legal interest. We hold, then, that Jesse Spurling had such an interest in the woman Jude and her children, as enabled him to sell and convey them; and that his vendee, Beam, acquired by his purchase, the transaction being freed from other objections, as complete title; and that Mrs. Spurling has no interest in them and consequently no claim to the aid of this Court. We are not unapprized that in some recent cases in the English courts of chancery, this *Page 417 doctrine is denied as a principle of equity. Such, however, we consider as the settled law of North Carolina. It is much more important to the community at large, that the laws governing the transmission of property should be permanent and fixed, than how they are fixed. A contrary decision would unsettle the law, upon a very important subject, with which the profession is now familiar. We do not mean to say that, when satisfied a previous decision is wrong in principle, we are under any obligation still to proceed in error. But, (529) when a train of decisions in our own courts of Supreme jurisdiction, has established certain principles as law, we do not feel called on to repudiate them, because another tribunal, however high, has decided otherwise. We see no good reason in this case for disturbing a settled principle.
Have the children of Mrs. Spurling any interest in Jude and her children? We think they have not. Their claim rests upon the following clause in the will of their grandfather, John Howell: "And what shall come to my daughters, Elizabeth and Polly, give and bequeath them during their natural lives, and after their death to their children". If this clause is to be considered as governing the bequest of Jude, then the children have an interest, which it is the duty of the Court to protect. But it has not connection with that bequest. The bequest of Jude is a specific legacy, standing, as far as the children are concerned, by itself; but accompanied by specific bequests to all the other children of the testator. After making these specific bequests, the testator proceeds to dispose of the residue of his estate, upon the death of his wife: "And after my wife's death, the plantation whereon I now live to be equally divided between my four children" (naming them), "and the rest of my estate to be equally divided between my children" naming them, of whom Elizabeth was one). Then follows the clause in question. Its location and phraseology evidently confine its operation to the share of Elizabeth in the residuum, and has no bearing or effect on the bequest of Jude. The words "share" and "comes", could relate only to the share or portion of the residuum, to which Elizabeth might be entitled. Of what this residuum consisted, we are not informed, whether of land, other than the home plantation, or of negroes or other personal property. In this share of the residuum, in whatever it may consist, Elizabeth has but a life-estate, with remainder to her children. The time for its enjoyment, either to the mother or the children, has not yet arrived, as Mary Howell is still alive. And there is no prayer in the bill that the (530) latter should furnish an inventory of the *Page 418 property that came to her hands, or is now in her possession. After gaining possession of the negro Jude by the three children, by contract with Mary Howell, the executor having assented to the legacy to her, Jesse Spurling had the right in law, if he did so, to sell the negroes to Joshua Beam, and the latter would acquire by such purchase a perfect right to them. If he did not purchase the absolute title, but only the life-estate of Mary Howell, the plaintiffs have no right to complain, inasmuch as he swears, he had no intention whatever to remove the negroes beyond the jurisdiction of the Court, and the plaintiffs have entirely failed to sustain their allegations by proofs.
Polly Howell intermarried with Daniel King, both are alive and plaintiffs in the bill. To Polly, the testator left a negro woman, Hannah, and she is included with Elizabeth Spurling in the before recited clause, as to her share of the surplus. We are not informed what has become of Hannah, but suppose she is still in the possession of Mary Howell. She and Tucker, her agent, both swear they have no intention, and never had, of removing the negroes, and there is no proof in contradiction.
The negro Minty is given by the will to the testator's granddaughter. Betsy Howell, who intermarried with Crayton Ledford. The answer of Mary Howell states that she had put the negro Minty and her children into the possession of Ledford, he paying her five dollars a year; and, as we understand it, she surrendered up to him her life-estate in those negroes. This she had a perfect right to do, and Ledford's title to them is complete, and he has a legal power to dispose of them as he pleases.
As to the two executors, John and Joshua Howell, they have no right to complain. They have not shewn by proofs that their property is in any danger, and the answers deny it.
The bill further charges that the defendant Mary Howell put tenants on the land, who have committed waste. The waste is denied by the (531) answer, and not supported by the testimony.
Upon the whole we are of opinion that the complaint of the plaintiffs is unfounded, that the sequestration improperly issued and must be withdrawn, and the bill dismissed with costs, to be taxed against the plaintiffs, excepts the infants. In taxing the costs, the master will allow one Solicitor's fee to the defendant Beam, and one for all the other defendants.
PER CURIAM. DECREED ACCORDINGLY.
Cited: Hurdle v. Riddick, 29 N.C. 89; Arrington v. Yarborough,54 N.C. 78, 80, 81; Cox v. Bank 119 N.C. 305. *Page 419