{
  "id": 8684824,
  "name": "GEORGE HURDLE AND OTHERS against JOSEPH B. OUTLAW, ADM'R",
  "name_abbreviation": "Hurdle v. Outlaw",
  "decision_date": "1854-12",
  "docket_number": "",
  "first_page": "75",
  "last_page": "79",
  "citations": [
    {
      "type": "nominative",
      "cite": "2 Jones Eq. 75"
    },
    {
      "type": "official",
      "cite": "55 N.C. 75"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "3 Hawks, 590",
      "category": "reporters:state",
      "reporter": "Hawks",
      "case_ids": [
        11277927
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/10/0590-01"
      ]
    }
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  "last_updated": "2023-07-14T15:28:57.092359+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "GEORGE HURDLE AND OTHERS against JOSEPH B. OUTLAW, ADM\u2019R."
    ],
    "opinions": [
      {
        "text": "Battue, J.\nAn attentive consideration of the arguments of the counsel on both sides, and an examination of the authorities on which they respectively rely, have satisfied us that the demurrer is well founded, and that the bill must be dismissed.\nIn support of the construction of the will of David Outlaw, for which the plaintiff\u2019s counsel contends, he relies mainly, if not altogether, upon the case of Pippin v. Ellison, 12 Ire. Rep. 61, recently decided in this Court. The question in that case, arose upon, the construction of the following clause in the will of John Wyatt: \u201cI give and bequeath to Lydia Wyatt, all the balance of my property during her natural life, and at her death it is my will and desire, that the said property loaned to my said wife, shall be sold by my executor, with the exception of one acre of land, and the money, arising from the sale of said property, to remain in the possession of my executor, in trust for the benefit of my daughter, Keziali Roby,\u201d &c. The Court said: \u201c the question is \u25a0whether the bonds, accounts and other ehoses m aetion passed under the above clause, or were undisposed of and subject to distribution ? The word \u201c estate \u201d has a broader signification than the word property: The former includes ehoses m aetion: The latter does not: and in reference to personalty, is confined to \u201cgoods\u201d: which term embraces things inanimate \u2014 furniture, farming utensils, corn, &c. and \u201cchattels,\u201d which term embraces living things \u2014 slaves, horses, cattle, hogs, &c. Eothing but personal property, or goods and chattels, could, at common law, be seized under & fi.fa., or be the subject of larceny.\nAs the testator uses the word \u201cproperty,\u201d ehoses in aetion are excluded, taking the word to have been used in its legal sense; and that such was his meaning, is made still more manifest by the direction that all said property, at the death of liis wife, shall be sold, and the moneys arising from the sale, applied,\u201d &c.\nThe counsel for the defendant, contend that the restricted meaning which the Court applied to the word \u201cproperty,\u201d was not necessary to the decision of the cause, as is apparent in the opinion itself; and $ierefore the case is not to be so highly regarded, as an authority, as a direct adjudication upon the very point would have been. The counsel then referred to several dictionaries and the text writers, and cited many cases to show that the word \u201c property \u201d has a much broader signification than was assigned to it by the Court in Pippin v. Ellison. Among these cases was that of Arnold v. Arnold, 2 Mylne and Keene 365, (8 con. ch. Rep. 36) in which it was held that a bequest of his \u201cwines and property in England\u201d passed the testators property in England of every description, including money in the funds, and at his banker\u2019s', debts, and arrears of a pension due to him, and was not confined to the property ejusdem ge-neris with wines, as had been contended for by counsel. In delivering his opinion, the Master of the Rolls, Sir CheistopiieR Pepy, (who was afterwards Lord Chancellor Cottenham) said, among other things, \u201cthe gift of thewineswouldnotbelimited by the occurrence of the subsequent word \u201c property,\u201d which, be it observed, is as large and comprehensive a term as can possibly be used.\u201d\nWe do not feel ourselves called upon, in this case, to'decide what is the true meaning of the term \u201cproperty,\u201d when used by a testator without any expression in the context to restrict, or extend or in any way to modify it, because we all think, that in the will under consideration, the words \u201c all my property of every description \u201d were intended to convey every thing of which the testator had the right to. dispose. His purpose was to make his .friend and relative, Dr. Joseph B. Outlaw, his \u201c universal legatee,\u201d giving to him whatever tliiggs he owned, whether real, personal or mixed, and whether in possession or in action. \u00dcSTothing less will satisfy the broad terms used, \u201c all my property of every description.\u201d\nThe first part of the demurrer must, therefore, be sustained.\nOur opinion'upon the question raised upon the second part of tiie demurrer, is equally against the plaintiffs. They have no such interest in the emancipation of the slaves mentioned in the bill, as will sustain a suit for that purpose in their names. Whether the emancipation of slaves, directed in a will or assumed upon a secret trust, is such a public charity as will be enforced by^a proceeding in the name of the Attorney General of the State, or whether it is a right which the slaves themselves can enforce, by a suit, are interesting questions which the present pleadings do not make it our dirty , to decide.\nIt is quite certain that the plaintiff's cannot enterfere in their own names. Had they charged as a fact, in their bill, that the defendant had taken the slaves upon a secret trust to permit them to remain in the State, nominally as slaves, but really as free persons, then the bequest, if the charge were true, would have been void, and the plaintiffs would have had such an interest in the slaves as' would have entitled them to an answer from the defendant. But no such allegation is to be found in the bill. The only charge, on the subject of emancipation, is of such a trust as we have already said, the plaintiffs have no right to enforce. In the case of Thomson v. Newlin, 6 Ire. Eq. Rep. 384, the Court say, with regard to such a trust, that the right of the next of kin would seem to bp ex-languished, \u201c for it does not belong to them to enforce it, nor does the breach of it work an injury to them, but only to the negroes or the State.\u201d\nBut it is argued for the plaintiffs, that they have a right to an answer from the defendant to ascertain the nature of the trust, so as to see whether it is a void one dr not: That might be so were there any allegation of any state of facts that would make the trust void. But such is not the case, and for' that reason the second part of the demurrer must also be sustained: the result of which is, that the bill must be dismissed with costs.\nPeaksoN, J.\nIt is not necessary for me to deliver an opinion in this case, as I fully concur in the decision upon the ground upon which it is put: i. e. from the words of the will, it was the intention of the testator to make the defendant his \u201cuniversal legatee.\u201d\nBut, as I delivered the opinion in Pippin v. Ellison, 12 Ire. Rep. 61, and was guilty of uttering an \u201c obiter d\u00e1ctum,\u201d by laying down a broader proposition than the decision called for, (which I have always endeavored.most studiously to avoid) it is not improper for me to refer to Campbell v. Smith, 3 Hawks, 590, where the decision is put on the word \u201cproperty\u201d per se, and as used \u201cin the Bill of Rights,\u201d does not include debts and other choses in action. HeNdbksoN, J. \u201c A debt or duty is not property in the proper sense of the word, although to comply with the intent, it is often so taken. Property is a thing over which a man may have dominion and power to do with as he pleases: he may give, grant or sell it, at his pleasure.\u2014 A person has an interest in a debt or duty, but a property in a thing only, either natural or artificial. He cannot give or grant a debt or duty, because it is not property.\u201d\nPee CueiaM. Bill dismissed.",
        "type": "majority",
        "author": "Battue, J. PeaksoN, J."
      }
    ],
    "attorneys": [
      "Graham for the plaintiffs. '",
      "Moore, Miller and G. W. Maywood for the defendant."
    ],
    "corrections": "",
    "head_matter": "GEORGE HURDLE AND OTHERS against JOSEPH B. OUTLAW, ADM\u2019R.\nA bequest of \u201call my property of every description\u201d to \u201cmy good friend and relative\u201d J. B. 0., shows an intention to appoint \u201c a universal legatee,\u201d and therefore, not only tangible property, but monies, stocks, bonds and choses in action, were held to pass by this bequest.\nThe next of kin have no interest in slaves bequeathed to one to be emancipated, and cannot properly bring suit in regard to them in their own names. Only the State or the slaves themselves, are interested in the question.\nAliter, where slaves are bequeathed in secret trust to be held nominally as slaves, but really as free persons. In such a case, the bequest would be void, and the next of kin might claim the slaves.\nCause removed from the Court of Equity of Alamance County, at the Eall Term, 1854.\nThe hill was filed hy the plaintiffs as the next of kin of David Outlaw, deceased, alleging that he had made'and published his last will and testament, which was solemnly admitted to probate, and which is as follows :\n\u201c It is my wish and desire, that my good friend and relative, Dr. Joseph B. Outlaw, have all my property-of every description. DAVID OUTLAW.\nDec. 20th, 1848.\u201d,\nAnd that the defendant took letters of administration with the will annexed of the said estate, and as administrator took possession of all the estate of the testator, consisting of slaves and other personal property, also that he took possession of a sum of money and the evidences of debt due the testator consisting of bonds, notes, mortgages, certificates of stocks in Banking and other incorporated companies, and other choses in action, amounting to seventy-five thousand dollars.\nThe plaintiffs in their bill insist that, by a proper construction of the will above set out, only the tangible property passed to the defendant, and that the monies, bonds, stocks, choses in action and evidences of debt were not disposed of thereby, and that the same is distributable among the plaintiffs, as the next of kin of the deceased.\nThe plaintiffs further allege that the debts against the estate have been paid off, and they pray that the defendant may be decreed to account and pa7 over to them the amount as to which the said David died intestate.\nThe plaintiffs in their bill further allege that among the slaves bequeathed to the defendant, there were two who were to be emancipated and set free; that the said David had, in his life-time, often so declared, and that the defendant, shortly after the death of the testator, in a letter written to a friend expressly admitted this to be the wish of the deceased and therein promised to effectuate this purpose, but that since that time the defendant has made sale of- one of these slaves and received the value thereof in money. They allege their willingness that this slave may still be emancipated, and that the defendant may be compelled to re-purchase him for that purpose, but they insist if this cannot be done, and this trust shall be considered by the Court as void, that he may be compelled to account for the value of these slaves to the plaintiffs. The bill also prays for general relief.\nTo this bill there was a demurrer, alleging grounds applicable to the several aspects of the plaintiff\u2019s claim: a join-der in demurrer, and the cause being set for argument, was transmitted to this Court by consent.\nGraham for the plaintiffs. '\nMoore, Miller and G. W. Maywood for the defendant."
  },
  "file_name": "0075-01",
  "first_page_order": 83,
  "last_page_order": 87
}