Cunningham's Heirs v. Executors of Cunningham
Supreme Court of North Carolina
This was a case sent up from Wilmington Superior Court. Thomas Cunningham, in September, 1792, duly made his last will and testament, by which, amongst other things, he devised as follows: “ It is my will and desire, that five feet of an alley be left from Front Street to low water mark, as convenient as may be to the after bequeathed lot, then I will and desire that forty feet back, including the house where Mr. Potts is now resident, be at the expiration of the lease…
Read the full summary
This was a case sent up from Wilmington Superior Court. Thomas Cunningham, in September, 1792, duly made his last will and testament, by which, amongst other things, he devised as follows: “ It is my will and desire, that five feet of an alley be left from Front Street to low water mark, as convenient as may be to the after bequeathed lot, then I will and desire that forty feet back, including the house where Mr. Potts is now resident, be at the expiration of the lease rented out for the maintenance of a negro woman of mine, named Rachel, and the maintenance and education of her three mulatto…
1Opinion of the Court
Hall, Judge.—
I think that the devise in question is void, and cannot take effect. The maintenance and education of some of the devisees, is what the testator appears to have been anxious for. How can it be effected? They are slaves, and their owners have a right to them and their services; if they are educated, it must be by his permission, and if it is attempted without, it is a violation of his right. If this property had been conveyed in trust for the same purpose, a performance of the trust could not be compelled in a Court of Equity, for the same reason. Admit that they could bring a…
2Cited by2 opinions
- Coulter v. RobertsonCourt of Appeals of Mississippi · 1852
- State v. . OstwaltSupreme Court of North Carolina · 1896