{
  "id": 8682265,
  "name": "ANGUS MORRISON & al. vs. DUNCAN M. KENNEDY, Ex'or &c.",
  "name_abbreviation": "Morrison v. Kennedy",
  "decision_date": "1842-12",
  "docket_number": "",
  "first_page": "379",
  "last_page": "381",
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  "last_updated": "2023-07-14T15:50:27.933727+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "ANGUS MORRISON & al. vs. DUNCAN M. KENNEDY, Ex\u2019or &c."
    ],
    "opinions": [
      {
        "text": "Ruffin, C. J.\nThe bill is filed by the next of kin of John Patterson, deceased, against his executor, claiming distribution of two slaves, Simon and Hilly, as not being disposed of in his will. By that instrument the testator, after several legacies to some of his relations, gave to his natural son, William S. Patterson his lands, \u201cand also all my personal estate of every kind and description ;\u201d and he appointed the defendant, Duncan M. Kennedy, his executor, and the guardian o\u00ed his said son. By a codicil he provides as follows : \u201cHaving considered my negro man Simon, a slave, to be no part of the aforebequeathed property, I therefore constitute and ordain Duncan M. Kennedy the sole management and control over the aforesaid Simon. I also exclude Hilly, the said Simon\u2019s daughter, as being no part of my property.\nThere can be no doubt, .that the effect of the codicil must be to take the two slaves mentioned therein out of the general gift of the personalty, made in the will to the son ; for the intention of the testator could not have been more expressly declared on that head. And the opinion of the court is equally clear, that no benefit to the executor was intended or can be collected from the language of the codicil; and, consequently, that he takes here, according to the general rule, in trust, and not for himself. As to Hilly; she is declared to be no part of the testator\u2019s property, and for that reason excluded from the operation of the will. He refuses to dispose of her at all; and, consequently, there is no gift of her to the executor. We think it is the same with respect to Simon. He is excluded from the property before bequeathed to the son, and that is all. He is given to no other person. But the testator adds: \u201c therefore,\u201d that is, because I have taken him from my son and made no particular disposition of him, \u2022\u201c I constitute D. M. Kennedy to have the sole management and control over him.\u201d It is argued, that the word \u201ccontrol\u201d imports a gift, as it excludes all interference from any other quarter. But we cannot think so. It signifies power or authority over the slave, and is nearly sy-nonimous with the term \u201cmanagement,\u201d as here used, and does not purport to vest the property beneficially, or to confer the power of absolute disposition. The cases, that have heretofore been decided by the court on this point, have all turned upon express words of disposition by the executor as he might think proper. Powell v Powell, N. C. Term Rep. 315. Ralston v Telfair, 2 Dev. Eq. Rep. 255. Rawles v Ponton, 1 Ired. Eq, Rep. 334. Such language is indispensable to turn the executor, who by his office takes in trust, into a beneficial legatee. That the word \u201c control\u201d cannot do. But if it could, had it stood by itself, it cannot have that effect, when connected with \u201cmanagement:\u201d which plainly shews, that the testator had -in view the executor\u2019s acts as executor, and not as owner. That is further strengthened by what immediately follows with respect to Hilly ; \u201cI also exclude Hilly as being no part of my propertyfrom which it is fairly inferrible, that he had not intended to give Simon as property. It is extremely probable, we think, that the testator intended a covert provision for emancipation ; but nothing of the kind is brought forward in either the bill or answer, and, therefore, we do not proceed on that ground in the decree. If that were true, it would only render it the clearer, that the executor does not take beneficially; and that we think clear enough, without resorting to the supposition of the secret trust alluded to; and, therefore, that the two slaves must be declared to be undisposed of by the testator, and to be held by the defendant in trust for the next of-kin.\nPer Curiam. Decree accordingly.",
        "type": "majority",
        "author": "Ruffin, C. J."
      }
    ],
    "attorneys": [
      "Winston for the plaintiffs.",
      "Strange for the defendant."
    ],
    "corrections": "",
    "head_matter": "ANGUS MORRISON & al. vs. DUNCAN M. KENNEDY, Ex\u2019or &c.\nA testator, by his last will, after several legacies, gave to his natural son all his lands \u201c and also all my personal property of every kind and and appointed D. executor of the said will and guardian of his son. Then by a codicil he provided as follows: \u201c Having considered my negro man Simon, a slave, to be no part of the aforebequeathed property, I therefore constitute and ordain D. the sole management and control over the said Simon. I alsaoxclude Hilly, said Simon\u2019s daughter, as beipg no part of my property.\u201d Held that neither of these slaves, Simon .and Hilly, was disposed of by the will, that D., the executor, had no title to either in his own right, but that, being undisposed of, he held them as trustee for the next of kin.\nTo enable an executor to take in his own right under a will, there must be words purporting to vest the property beneficially in him, or to confer on him the power of absolute disposition.\nThe cases of Powell v Powell, N. C. T. Rep. 315. Ralston v Telfair, 2 Dev. Eq. 255. Rawles v Ponton, 1 Ired. Eq. 3'54, cited and approved.\nThis cause having been set for hearing at the Fall Term, 1S42, of Moore Court of Equity, was transmitted by consent \u25a0of parties to the Supreme Court. The matter in contest is sufficiently set forth in the opinion delivered in this court.\nWinston for the plaintiffs.\nStrange for the defendant."
  },
  "file_name": "0379-01",
  "first_page_order": 379,
  "last_page_order": 381
}