#### HENRY C. FORTESCUE, Adm’r, &c. v. FENNER B. SATTERTHWAITE.

A testator devised certain negroes to his three children, J. S. and N. and then proceeded as follows: “ In case either of my said children should die without heir lawfully begotten, it is my wish that the property should be equally divided between the children then living, whether J. S. or ft.” J. died first. N. then died without issue, leaving S. surviving. Held that under this limitation S., the surviving child, took the property belonging toN.

S. the survivor, had previously intermarried with the plaintiff, and after this intermarriage, and before the death of N., the plaintiff conveyed the negroes, now in controversy, being part of those in which his wife had a contingent interest, to the defendant. Held that this deed was an estoppel as to the husband, and when his wife acquired a vested interest by the death of N., such interest passed to the defendant by force of the said deed, either upon the principle that the interest, when it accrued, fed the estoppel, and thereby gave an absolute title, or that the deed operated as a release of the wife’s choses in action.

If the words in a deed of sale of goods and chattels plainly evidence a sale, this is sufficient without technical words. Such a deed of sale may be made without any words of “ bargain and sale” as well as with those words.

Contingent interests, such as executory divises, &c. are assignable. A possibility cannot be transferred, but by a possibility is meant, the mere expectancy of an heir apparent, or of one who is next of kin to a living man, or the prospect of having a legacy left, &e.

The case of Burnett v. Roberts, 4 Dev. 83, cited and approved.

This was an appeal from the judgment of the Superior Court of Law of Beaufort County, at the Spring Term, 1841¶ his Honor Judge Bailey presiding. The case was one of trover, brought to recover the value of three negroes, Yiolet, Matilda and Bill. These negroes were the children of negro woman Mirny, who belonged to one William Satterthwaite, deceased. The said William Satterthwaite made and published his last will and testament, dated 17th September, 18L0. The plaintiff claimed under the following clauses in the said will: “ I give and bequeath to my daughter Nancy *567Satterth waite, one negro woman named Mimy and Jaban, and one bed and furniture, &c. to her and her heirs forever.” ' The testator, after making several bequests to his other children, says: “ In case of either of said children should die without heir properly begotten, it is my wish that the prop-. erty should be equally divided between the children then living, whether James, Nancy or Sally.” The plaintiff died, leaving Sally, the plaintiff’s intestate, James and Nancy, his children and the legatees mentioned in the said will. James died first: Nancy then died without issue, in July, 1836, leaving Sally the only survivor. And the question was, whether Sally was entitled to the negroes under the last clause, as! aforesaid. The defendant contended that the limitation over was too remote, and the plaintiff could not recover. And¿ furthermore, he offered in evidence a bill of sale from Nancy Satterthwaite, dated 28th May, 1833, for the negroes in controversy, a copy of which is annexed, marked (B); and, also, an agreement between Henry C. Fortescue and the defendant, dated 27th January, 1834, (after the said Henry’s marriage with Sally) agreeing to refer the rights of the said Henry, and the defendant to the negroes of the said Nancy, claimed by them respectively, to the award of certain arbitrators^ the decision of the arbitrators in favor of the defendant as regards the negroes now in controversy, and also a bill of sale for these negroes from Henry C. Fortescue and his wife Sally, (the plaintiffs’ intestate) to the defendant, dated 27th January, 1834, made in pursuance of the award. A copy of this bill of sale is hereunto appended, marked (D.) All which testimony was rejected by the Court. Nancy died intestate, and without issue in July, 1836. Sally was a feme covert¿ at the execution of the said deed.

His Honor Judge Bailey was of opinion that the limitation in the will was not too remote, but that the words, then living, whether James, Nancy or ¡Sally, tied up the contingency to the death of the first taker without issue. Under this instruction, the jury returned a verdict for the plaintiff. A new trial having been moved for and refused, and judgment having been rendered, pursuant to the verdict, the defendant appealed.

*568(3.)

Copy of Bill of Sale from Nancy Satterthwaite.

j£now- ap men by these presents that I Nancy Satterthwaite of the State of North-Carolina and County of Beaufort, for and in consideration of the love & affection which I have unto my nephew Fenner B. Satterthwaite of the aforesaid County and State, and the sum of one dollar to me in hand paid by the said Fenner, <fcc. do hereby alien, set off and confirm unto my said nephew Fenner B. Satterthwaite all my right, title, interest and claim which I have in and to the following negroes (describing among others the negroes claimed in the plaintiffs declaration,} all of which described negroes unto my said nephew Fenner B. Satterthwaite, his heirs and assigns &c. forever. (Then follows a clause of warranty against all persons, claiming by, through, or under her.) Signed, sealed, witnessed and registered according to law and dated the 28th May. 1833.

(D-)

Copy of the deed from Henry C. Fortescue and his wife to the defendant.

Know all men by these presents, that we, Henry C. Fortescue and wife Sally, of the part, and Fenner B. Satterthwaite of the other part, all of the County of Beaufort and State of North Carolina, witnesseth that we, Henry C. Fortescue and wife Sally, do by these presents, for and in consideration of one dollar to us in hand paid by Fenner B. Satterthwaite,the receipt thereof we do hereby acknowledge and ourselves fully satisfied for all our right, title and interest, which we now or may have in and to negro woman Violet and child not named, Matilda and Jim, formerly the property of Nancy Satterthwaite-^ and we, the aforesaid Henry C. Fortescue and his wife Sally, do for ourselves, our heirs, executors and administrators covenant to and with the said Fenner B. Satterthwaite to warrant and defend the title of the said negroes from the proper claim of all persons claiming by, from or under us, to the only proper use and benefit *569of him the said Fenner B. Satterthwaite, to him, his heirs, executors, administrators and assigns. As witness, onr hands and seals, this 27th Jan. 1834.

Signed, sealed, witnessed, delivered and registered, all ac-according to law

J. H. Bryan, for the plaintiff.

W. H. Haywood and Iredell, for the defendant.

Daniel, J.

This an action of trover for the conversion of three slaves. Pleas, The general issue and release. Willi-Satterthwaite in the year 1813 bequeathed legacies to each of his three children, James, Nancy, and Sally. The testator, after making several other devises and bequests in his will, then proceeds and says, “In case either of my said children should die without heir lawfully begotten, it is my wish that-the property should be equally divided between the children then living, whether James, Nancy or Sally.” The said three children were alive at the death of their father. Afterwards James first died; Nancy then died without issue (in July, 1836,) leaving Sally the only survivor. The slaves in controvercy were a part of those bequeathed to Nancy as aforesaid. Sally had married the plaintiff Fortescue; and she and her husband on the 27th January, 1834, executed to the defendant, then in possession, the deed for the said slaves, marked in this case with the letter (D.) Sally, the plaintiff’s wife, died, and he, as her administrator, has brought this action. The Judge was of opinion, that the contingent interest or executory devise, which each one of these children had in the legacies to the other children, was not too remote; but that the words “then living, whether James, Nancy or Sally” tied up the contingency to the death of the first taker without issue. But the Judge refused to permit the aforementioned deed from the plaintiff to the defendant to be received in evidence. The plaintiff had a verdict and judgment, and the defendant appealed.

We agree with the Judge that, in this case, the limitation over to Sally, the survivor, of the legacy given to Nancy, on her dying without issue, was not too remote; but-that it was *570a good executory devise. The meaning of the testator is plain, that on any one or two of the children dying without f ’ , J . , ,. . , , T issue, the survivor or survivors, then living, whether James, Nanc7 01 should have the legacy, which had been before given to the one so dying. The contingent interest, if it ever could vest, must necessarily vest during the period of a life or lives, that were in being at the death of the testator. The words “then living” tie up the limitation during the lives of the three children.

We do not agree with the Judge in the rejection, as evidence, of the deed, which Fortescue and wife executed to the defendant in 1834, and during the life of Nancy. It is true, as stated in the argument, that a possibility cannot be transferred at law. But by a possibility we mean such an interest, or the chance of succession, which an heir apparent has in his ancestor’s estate; which a next of kin has of coming in for a part of his kinsman’s estate; which a relation has of having a legacy left him, &c.: Such interests as these, we conceive, are the true technical possibilities of the common law. 2 P. Wil. 181; Whitfield v. Faucet, 1 Ves. 381; Atherley on Mar. Sett. 57. But executory devises are not considered as mere possibilities, but as certain interests and estates. Gurnel v. Wood, Willes 211; Jones v. Roe, 3 T. R. 93. In the last case the Judges seem to have considered it as settled, that contingent interests, such as executory devises to persons who were certain, were assignable. They may be assigned (says Atherley p. 55) both in real and personal estate, and by any mode of conveyance, by which they might be transferred, had they been vested remainders. In the present case, however, it is unnecessary to discuss the question how far the deed would have bound the wife, in case the husband had died before the contingency happened, and left her surviving. The deed, as to the husband, is an estoppel, and when his wife acquired a vested interest, to wit, in 1836, on the death of Nancy, the said interest passed to the defendant by force of the said deed, either upon the principle that the interest, when it accrued, fed the estoppel (Doe ex Dem. Christmass v. Oliver, 2 Smith’s Select Cas. 417,) or the deed operated as a release of his *571wife’s choses in action. If the deed be considered as a release, the interest of the wife, as well as that of the husband, was by it extinguished, <fc there was nothing left to survive to her administrator. Burnett v. Roberts, 4 Dev. 83; 1 Shep. Touch 333; 2 Do. 161, Preston’s Ed.; 1 Roper on Hus. & Wife 232. It is contended for the plaintiff that the deed has no conveying words in it; that it is but an agreement or covenant under seal, and therefore that it cannot operate as an assignment. The answer is, that a deed of sale of goods and chattels may be made, without any words of bargain and sale, as well as by those words. 1 Shep. Touch. 388, ('Preston’s Ed.) If the words in the deed plainly evidence a sale, it is sufficient without technical words: we think that is the case in this deed. If the deed be considered as a release, the words, we think, are sufficient to operate as such. If one do acknowledge himself under seal to be satisfied and discharged a debt, this is a good release of the debt. 2 Shep. Touch. 160, Prest. Ed. In this deed the plaintiff acknowledged himself satisfied for his right and title, which he then had or might thereafter have in the said slaves. On the death of Nancy, the plaintiff’s wife had a vested estate. The release of the husband to the defendant in possession must therefore have the effect of destroying that title in and to the slaves, which, without the release, the husband had, at that instant of time, a right to receive from the defendant and reduce into his own possession. We think there must be a new trial.

Per. Curiam, Judgment reversed and a new trial awarded.