Source: Appeals in Equity, Columbia, SC - January 1832 Baker vs Baker:
Testator bequeathed as follows: "I lend unto my daughter E.," (a feme covert) "enduring her natural life, my negro girl Rosela, at the discretion of my executors from year to year as they think proper; and then said Rosela and her increase to be equally divided amongst the heirs of her body; and in case the said E. shall die without issue, then the said Rosela and her increase to be equally divided among all my other heirs:" the executors delivered Rosela to E. and her husband, who had her in possession many years: Held, that the legal title remained in the executors: that the martial rights of the husband had not attached, and that Rosela and her increase were not liable for his debts, and could not be mortgaged by him. [Note: A feme covert was not recognized as having legal rights and obligations distinct from those of her husband in most respects. Instead, through marriage a woman's existence was incorporated into that of her husband, so that she had very few recognized individual rights of her own].
Before DeSAUSSURE, CH., at Newberry, July, 1831
The bill was filed May 1, 1828, by complainant, Elizabeth Baker, by her next friend, George McCreless.. The bill states, that on June 10, 1811, the father of the complainant, Thos. Userry, executed his last will and testament, in which is the following clause, to wit: I lend unto my daughter Elilzabeth, enduring her natural life, my negro girl, Rosela, at the discretion of my executors from year to year, as they think proper; and then said Rosela and her increase to be equally divided amongst the heirs of her body and in case the said Elizabeth shall die without issue, then the said Rosela and her increase to be equally divided among all my other heirs." That on the 12th day of the month and year aforesaid, the said Thomas, a resident of Montgomery County, North Carolina, departed this life, leaving his said will in full force. That shortly after his death, the executrix and executor named in his will, exhibited the said will to, and it was admitted to probate by the County Court of the said County, and the executrix and executor therein named, qualified and took upon themselves the burden and execution thereof.
That at the death of her father, the complainant was the wife of Williamson Bakeer, and resided in Montgomery County, North Carolina. That at the time she and her husband were about removing to this State (SC), the executrix, under the clause of the will above recited and set forth, delivered to complainant, as a loan, for her separate use, the said negro girl, Rosela; that the complainant has held the said negro, Rosela, from that time to the present, in possession, for her separate use, except for a period during which she was hired by herself, and her husband, to one Wm. Haston. That the said negro girl, Rosela, has had three children, to wit:, Elijah, Martha and Sam. That Williamson Baker, the husband of the complainant, being indebted to one Samuel Red, the said Samuel Red, well knowing that the said negro girl, Rosela, and her increase, were only in the possession of the complainant, for her separate use, caused the said Williamson to be arrested, under a bail writ, or a ca. sa., or perhaps both. That the said Williamson, without understanding his duty in the premises, asssigned all his interest in the said negro and her increase, (well knowing that he had none,) to the said Saml. Red, in order to procure his liberation from confinement, under the prison bounds Act. That the said Saml. Red, under the said assignment, has seized the said negro, Rosela and her increase, and is proceeding to sell the same.
The prayer of the bill was to restrain the said Saml. Red, perpetually, from proceeding to sell the said negro, Rosela, under the assignment.
Williamson Baker filed his answer July 6, 1829, admitting the material allegations in the bill, and affirming them to be true.
Saml. Red also filed his answer, neither admitting nor denying the allegations of the bill in relation to the execution of the will of Thomas Userry; but contending that the executrix of the will, by delilvering the negro to complainant and her husband, when they were about to remove from north Carolina, assented to the legacy, so far as to vest a life estate in the slaves in complainant. He denied that complainant had had the separate use of the slaves, but believed that Williamson Baker had almost the exclusive use thereof. That he regarded them as the property of Williamson Baker, up to the time, (February 27, 1822), he took a mortgage of them for the principal part of the debt due him by complainant's husband.
DeSAUSSURE, CH. The question turns on the construction of the will. The clause in question is worded very oddly. It is first a gift of the slave to the daughter, Elizabeth, during her life; then there is a discretion in the executors, to limit the possession from year to year. Then a limitation to the heirs of her body: and upon her death, without issue, to be divided among the other heirs of the testator. Whatsoever degree of discretion was given to the executors, did not diminish the estate, and could only apply to the possession. That discretion they have exercised, by giving possession for many years without control. The bequest to the daughter is for life. The limitations over are upon an indefinite failure of issue, and therefore too remote and void. The legacy then vested absolutely in the first taker; with all the consequences of such vesting. The marital rights of the husband attached, and the husband had a right to assign or transfer the property. He has done so; and the creditor has a right to be paid by the sale of the slaves. The bill is dismissed; but let the costs be paid out of the sale of the slave.
The complainant appealed on the following grounds:
1. Because, under the clause of the will, the wife took no estate upon which the marital rights of the husband could attach, and therefore he could not assign or convey it.
2. Because the legal estate remains in the executors, who hold the slaves, to be loaned to the wife from year to year during the wife's life, the loan to be at the discretion of the executors.
3. Because the Chancellor erred in decreeing the limitation to be too remote, and that the first taker, took absolutely.
4. Because the words of the will, under the circumstances, the wife being a feme covert, created a separate estate for her use, and particularly so, as the will being made in North Carolina, is to be construed according to the laws of the State.
Dunlap, for appellant
The opinion of the Court was delivered by JOHNSON,J. It is not my purpose nor is it deemed necessary, to enquire, whether the limitation over, of the negro, Rosela, after the death of the complainant, Mrs. Baker, can or cannot take effect. It is a question, perhaps, not entirely free from difficulty. But be that as it may, if she took an absolute property, the bill of sale, by way of mortgage, made by her husband to the defendant, Red, is good, and binds her. So, if she took only a legal estate for life, the mortgage is good to that extent, and she h as no cause of complaint. It is only necessary, therefore, to enquire, whether under the will of her father, Thomas Userry, out of which these questions arise, she took any interest which was subject to the disposition of her husband, or rendered the negro liable for his debts. The following is the provision of the will before alluded to, "item, I lend unto my daughter Elizabeth, (the complainant,) enduring her natural life, my negro girl, Rosela, at the discretion of my executors, from year to year as they shall think proper; and then said Rosela, and her increase, to be equally divided amongst the heirs of her body, and in case the said Elizabeth shall die without issue, then the said Rosela, and her increase, to be equally divided amongst all my other heirs." Every man of competent age, possessing a sound and disposing mind and memory, has a right to prescribe a rule for the disposition of his property after his death. His will or testament is evidence of his intention as to the manner of disposition, and all the rules of construction have been framed to ascertain that intention. To effectuate this, it is admissible to substitute, or for and, and . The strict grammatical construction my be disregarded, and words and sentences transposed: 1 Rob. on Wills, 490. In short, there is no limitation to the powers of construction according to the intent, but certain arbitrary rules rendered necessary by the laws of property.
Let the question then be put-- what estate did the testator intend, by this bequest, to give to the complainant, in the negro Rosela? He certainly did not intend to give her the absolute property; for her interest is in terms limited to her life; and, whether the limitation over is good or bad, is immaterial to this question, for that depends on an arbitrary rule. It is, I think, equally certain, that he did not intend to give her an absolute unconditional life estate. If that had been his intention, it was sufficiently expressed by the terms and he would not have encumbered it with "at the discretion of my executors from year to year, as they shall think proper." and I venture to affirm, that no one, ever yet employed these terms, in the belief that they were necessary or fit, in a bequest of an unconditional life estate. He must then have employed them for some other use, and if it be practicable to ascertain the intent, we are bound to give it effect. The word lend is also used in connection with this qualification of the interest given--"I lend unto my daughter,"&c. In its legal sense, as well as in its common acceptation, the term loan is used to express a property in the things lent, limited by the contract of lending, or determinable at the will of the lender. The thing lent, must be used in the manner contemplated, for if the borrower use it otherwise, he is liable to the lender, -- it is, therefore, necessarily personal in the borrower. If the time be limited by the contract, or if it be terminated by the will of the lender, the think must be restored, or the borrower is liable to an action. Jones on Bailm. 74. I know that the word lend, in a will, is frequently interpreted give, but that is to give effect to the intention. Thus, if a testator says, I lend my servant Dick to my son John forever," it will be construed give, because a loan would be inconsistent with the extent and duration of the property given. But her it is connected with "at the discretion of my executors from year to year as they shall think proper," and these terms, if they mean any thing, not only do not control the technical meaning of the word lend, but expressly limit the loan from year to year; and even then it is determinable at the will of the executors. It is then a loan in the strict sense of the word. It is personal to the complainant, nor can she use the negro otherwise than contemplated, and she must have her ready at the end of each year, to be delivered to the executors, if they shall think proper to terminate the loan; -- and this is utterly inconsistent with the power of disposition by the husband, or liability to his debts. To enable the executors to exercise any discretion over the negro, it was indispensably necessary that the legal interest should abide in them; for the exercise of a discretion over property in which one has no interest, involves an absurdity. No precise form of words was necessary to create a trust in them; for, when it is necessary to carry into effect the intention of the testator, it arises by necessary implication. The case of Graves vs. Johnson, decided at May Term 1830, is in point, and I think the principle is deducible from Foley vs. Burnell, Cowp. 445, note. The legal property, therefore, remained in the executors, as indispensably necessary to carry the testator's intention into effect. It is remarked, in the Circuit Court decree, as the basis of the judgment, that the executors had exercised their discretion by delivering up the negro to the complainant, and suffering her to retain the possession for a long period. It was a trust reposed in them of which they could not divest themselves, as was said in Graves vs. Johnson, and besides that, the possession of Mrs. Baker was in the direct execution of the trust, and her retaining possession, was evidence of their assent from yeer to year, and no more. I am, therefore, of opinion, that the legal estate in the negroes is in the executors of the testator, Thomas Userry, in trust for the use of the complainant from year to year until they shall think proper to determine it; that her possession is consistent with, and in pursuance of the trust, and consequently, that her husband had no power to dispose of them.
It is therefore, ordered and decreed, that the decree of the Circuit Court, directing that the negroes mentioned in the complainant's bill, be sold by the Commissioner to satisfy the debts due to the defendant, Saml. Red, by the defendant, Williamson Baker, and for dissolving the injunction heretofore granted, to restrain the said Red from selling the said negroes, be and the same is hereby set aside and reversed; and that the said injunction be made perpetual, and that each of the parties pay their own costs.
MARTIN, J., concurred O'NEALL, J., was of counsel in the cause, and gave no opinion. Decree reversed.