#### John Taylor v. Mary Lanier and others.

From Granville.

A father, for the purpose of advancing- his son in life, conveys to him his manor plantation and sundry slaves, reserving to himself and wife tli& use of such lands and slaves during their joint lives and the life of the survivor of them ; and in the conveyance “ it is agreed between the “ father and son and is to be taken as a principal part of their contract, “ that the son is to provide for, maintain, keep, succour and nourish “ the father’s daughter Mary, during her natural life, so that she do not “ suffer or lack for necessaries in any manner whatsoever.” — The support and maintenance of Mary is not a charge upon the property conveyed to the son, but a personal charge upon the son.

There is no direction that the maintenance shall be raised out of the rents and profits of the property, nor any expression which takes the case out of the principles of an ordinary trust, binding- only on the conscience of the son.

A covenant before marriage to settle certain lands upon the wife, amounts to a specific lien upon those lands in the possession of the devisees; but a general covenant to settle lands upon the wife, of a certain annual value, gives no remedy to the wife but as s specialty creditor.

The father after making the conveyance aforesaid to his son, made his will and bequeathed to Ms daughter Mary, during her life “ a bed and “ furniture, a horse, saddle and bridle, two negroes, &c. and directed “ that after her death, the property so bequeathed should be sold and “ the money be equally divided between testator’s children, except “ the aforesaid son, and then notices that Mary is to have her mainte- “ nance from the son, according to the contract in tile deed to Mm”— The property given to Mary in this bequest, is in addition to tlie main, tenance provided for her m the deed to the son, and is not to betaken into account for her. support and maintenance.

The rule of considering a legacy as satisfaction of a portion, arises from a presumption that it was so intended by the testator ; and that like all other presumptions may be repelled or confirmed.

If portions be provided by any means whatsoever, and the parent gives a provision by will for a portion, it is a satisfaction prima fade, unless there be circumstances to shew it was not so intended.

This was a case agreed, in which the material facts were as follows.' — Thomas Lanier, on the 2d JNcvemior, 1790, executed to his son William Lanier a deed of gift, in the following- words, to wit ;

*99“ To all to tohom these Prest ntS shall come — Cs eeling—

“ Know ye that I, Thomas Lanier, of Granville County, in the State of “North-Carolina, for and. in consideration of the love, good will and af- “ fection, wMch X do owe and bear towards my son William Lanier, and “ for his advancement in life, do mate over and convey and confirm unto “ the said William my manor plantation and , ouses, together with my “ lands adjacent, containing in the whole ..bout nineteen hundred acres, “ be the same more or less, lying on Little Nut-Bush in the said County ; “ also eleven negroes, viz: Jeffrey, Young, Jack, &c. saving and reserving “ nevertheless my life in and to the said land and negroes, to use, occupy, “ possess and enjoy the free use, and exercise thereof) for and during the “ said term of my natural life, and also reserving to my wife Judith during- “ lier natural life, free and clear of interruption, the following part and “ parcel of the before mentioned land and houses, viz : beginning, &c. “ which said land and negroes 1 do hereby give and make over to my “ said son William Lanier, his heirs and assigns forever ; but to remain and be agreeable to the true intent and meaning herein set forth. And “ it is further concluded and agreed upon between the said Thomas La- “ nier and his son William, and is to be considered as a principal part of “ this contract, that the said William provide for, maintain, keep, succour “ and nourish my daughter Mary during her natural life, so that she do not suffer or lack for the necessaries of life in any manner whatsoever. * In testimony, &c.

“THOMAS LANIER, (Seal.)

“ Witness, &c.”

Tilomas Lanier delivered to his son William tlie negro slaves and paid of tiie land shortly after the execution of this deed, and several years before his death 5 and daring this time no claim for the support and maintenance of his daughter Mary, was set up against William. Thomas Lanier by his last will bequeathed as fellows, to wit : 65 I “ lend unto my daughter Mary Lanier, for and during her <c natural life, one feather bed. and furniture, that which she “ sleeps on, also a good riding horse, and a negro woman “ by the name of Lucy and her increase •, and a negro “ fellow by the name of Burges, one saddle and bridle, the negro Burges to be hired out every year during her “ life : also two cows' and calves, &c. After her decease, (s all that I have lent her, to be sold by my executors, and “ the money arising therefrom to be equally divided “ between my surviving children now living, except my. *100 a Son William, who is not to have any part whate,ver of “ what I lend to my daughter Mary. And my daughter “ Mary is to have her maintenance from my son William “ according to contract made in my deed heretofore to “ him.” — The complainant and six of the Defendants were purchasers with notice.

Two questions were made in this case, 1st, whether the support and maintenance of Mary Lanier, be a charge upon the property conveyed by Thomas Lanier to William, or be only a personal charge upon William. 2d, whether the property bequeathed to Mary be subject to be taken into account for her support and maintenance, in aid of the property mentioned in the deed to William.

This case, which, from various causes, had been continued in this Court since July, 1812, was decided at this term.

Tayior, Chief-Justice,

delivered the opinion of the. Court:

The deed executed by Thomas Lanier, to his son William, purports to be made in consideration of natural love and aifection, and for his advancement in life: and after describing the property, and reserving a life estate to himself in the land and negroes, and a life estate to his wife in part of the land, these words follow, “ but to remain and “ be agreeable to the true intent and meaning herein “ set forth ,• and it is further concluded and agreed upon “ between the said Thomas and his son William, and is to 4< bo considered as a principa! part of this contract, that “ the said William provide for, maintain, keep, succour “ and nourish, my daughter Mary, during her natural life, “ so that she do not suffer or lack for the necessaries of “ life, in any manner whatsoever.” — The words first quoted, are evidently inferable to the life estates reserved to the grantor a id his wife : and the question is, whether the other words making a provision for the daughter Mary, operate as a specific lien upon the property, so as to make it charge*101able in tbe hands of bona fide purchasers, but with notice. And I am of opinion, that this is only a personal charge upon the son; for besides that there are no words which can be fairly construed as amounting to a lien, it is improbable that the covenantor should have designed so small a sum in proportion as was necessary to the maintenance of his daughter, to become a lien upon the whole of this property in the hands of a purchaser. The supposition seems to be inconsistent with what he professed to be the the consideration, viz. the advancement of the son, anti with the absolute control of the property, which is given to the son by the deed. There is no direction that the maintenance shall be raised out of the rents and profits of the property, nor any expression which takes the case out of the principles of an ordinary trust, binding only on the conscience of the son. I have look cd into the cases of covenants which have been contended in this Court to run with the land, and find many much stronger than this, where the covenant was held to be merely personal. A covenant before marriage to settle certain lands upon the wife, amounts to a specific lien upon the lands in the possession of the devisees : but a general covenant to settle lands upon the wife, of a certain annual value, gives no remedy to the wife, but as a specialty creditor.* If A covenant to pay-an annuity to J. S. he shall not deduct for taxes, for the charge is only on the person of the covenantor.† This case cannot be distinguished from the grant of an annuity which may be chargeable upon lands, if such a provision is made in the deed, but is in all other cases, only a personal charge. If A. devise land to B. on condition to pay C. a sum of money, and there be no clause of entry, this is no charge on the estate to give the legatee of the money a lien on the land ; but the heir at law may enter and take advantage of the condition : but in Equity he is considered only as a trustee for the legatee.‡

*102'With respect to the other question in this case, I take it to be very clear, on the ground of intention, that the bequests made to the daughter Mary are in addition to ^ maintenance provided for in the deed; because the testator takes notice that she is to have maintenance from his son, according to their contract; and this he does immediately after disposing of Mary’s legacy after her death. This completely negatives every presumption of his having forgotten Ihe provision for maintenance; and is nearly as strong as if he had expressly declared that the bequest should be additional to it. It also affords an answer to all the cases on the subject of double portions; for on the supposition that they were applicable to, this case, yet it is admitted by them that the rule of considering a legacy as satisfaction of a portion, arises from a presumption that it was so intended by the testator; and that, like all other presumptions, may be repelled or confirmed. The rule, as laid down in one of the latest cases, is, that if portions are provided by any means whatsoever, and the parent gives a provision by will for a portion, it is a satisfaction prima fade, unless there be circumstances to show it was not so intended.* Here, I think, the strongest circumstance appears upon the face of the wall; and, consequently, that nothing ought to be deducted from the burthen placed upon William, o maintaining his sister Mary, by reason of the bequest; which ought to he considered as an added bounty of the testator, designed to place within her reach certain moderate enjoyments beyond the limits of a bare maintenance.

*

1 P. Wms, 439.

†

3 Salk. 616.

‡

1 Ves. 423.

*

3 Ves. 516.