JONES v. ZOLLICOFFER

1. A testator by his will gave to his wife the use of certain slaves for her life, and after her death the slaves were directed to be divided among testator's children; the wife and one of the testator's children were made executors; the wife took the property as legatee, and, for her own benefit, sold one of the slaves, and three of the children joined in the conveyance with her; the rest of the legatees filed a bill in 1794 against the purchaser under the widow, and the court dismissed the bill. In 1811, on a bill of review filed, the then Supreme Court reversed the decree dismissing the bill, and on a claim now set up by the purchaser to be substituted to the rights of his vendors to such share as they would be entitled to in the other parts of testator's estate, it was Held, that where one claimant has two funds, and another but one of them to which he can resort, then if a selection be made by him, having access to both, of that fund to which alone the other has access, and such selection be dictated by mere caprice, equity will restrain it, and confine the claimant to the fund not operated by the claims of the other; but if convenience, and not caprice, dictate the selection, the most that equity does is to substitute: and in the case stated, if the property were of such nature that value alone is to be regarded, so that the Court might see that fraud or caprice induced complainants to pursue the property in defendant's possession, the Court might interfere; but with slaves, towards whom an attachment may exist regardless of their real value, the case is different, and the Court will not interfere, because a person who had right in common with another to a parcel of slaves might be actuated by other motives than mere caprice or fraud, who refused to validate a sale made in severalty by his copartner of some favorite slaves.

2. Held further, that in this case the double fund was lost without any default of the complainants, and by a decree of a court of supreme jurisdiction, and, therefore, the Court would not presume that the complainants fraudulently abandoned that fund with an intent capriciously to pursue, by a bill of review, the slaves in the defendant's possession.

3. Held further, that the accumulated rights of defendant's vendors, on the death of some of the children of the father, the testator, inured to the benefit of the defendant, whether such children died before or since the sale to him.

(642) HENDERSON, J.

A court of equity will restrain a person in the capricious exercise of his rights, for benevolence becomes a duty enforced by courts of justice, when its exercise is in no wise prejudicial to the party, and a want of it is injurious to another. Thus, when a person may get satisfaction out of either of two funds, and another can get satisfaction only out of one of them, and they are both equally convenient and accessible to him who may get satisfaction out of either, and nothing but mere caprice governs him in making the selection, there equity will restrain him to the fund not operated by the claims of the other; but if convenience and not caprice is his motive, the most that equity does is to substitute the disappointed claimant to his rights. The first is rarely done, for it is matter of extreme delicacy to restrain a person in the exercise of a legitimate right, in favor of one who has no claim upon him by contract, and whose only connection with him arises from being interested in the same common fund; yet where there is a fraud, moral or legal, or mere caprice, he will be restrained. The latter, to wit, substitution, is very frequently done, and is the foundation of marshaling assets in favor of legatees and simple contract creditors, and applies in cases where there is neither fraud nor caprice; it is sufficient that his fund has been exhausted by one who had a double means of satisfaction. The defendants call upon us, in this case, to restrain the complainants from interfering with Beck and her issue, and pray that (643) they may be turned over to the other slaves and their issue, which belonged to William Jones, the elder, so far as the rights of his vendors extended in said residue, they having sold one of the common stock or fund to him in severalty. And were it money or a flock of sheep or anything of the like kind, where value alone is to be regarded, and one fund is as accessible to the complainants as the other, so that the court could perceive that mere caprice or fraud induced the complainants to pursue the part in defendants' possession, the court might exercise the very delicate power before mentioned; but towards property of this kind it is far different. It is well known, as to slaves, we have our partialities and antipathies, regardless of their real value, and which may arise from feelings very different from those that debase the human heart; and a person who had right in common with another to a parcel of slaves might be actuated by other motives than mere caprice or fraud who refused to validate a sale made in severalty by his copartner of some favorite slaves. He might well say to the purchaser, Look yourself to the title of your vendor to the remaining slaves for compensation; it is sufficient that you should stand in his place and be substituted to his rights.

But there is another and perhaps stronger objection to the request of the defendant. This cause came on to be heard more than twenty years ago, and as to this question, presented the same aspect then that it does at present. With a full view of the case, the court, after dismissing the bill as to Zollicoffer, directed the remaining slaves to be divided among the representatives of William Jones, including Zollicoffer's vendors, that is, as if the negro Beck had never been. This double fund was therefore lost without any default of the complainants, and by a decree of a Court at that time of Supreme jurisdiction, and it cannot be presumed that the complainants fraudulently and voluntarily abandoned that fund as a means of satisfaction, with an intent capriciously to (544) pursue by a bill of review the negroes in Zollicoffer's possession; and therefore this double fund, which they once might have had for their satisfaction, has been lost, and that not by their default or consent, which cuts up the very grounds of the defendants' application. The exception must be overruled.

As to the advice asked by the master upon the accumulated rights of Zollicoffer's vendors on the death of some of the children of William Jones without issue, I conceive that such accumulation inures to the benefit of Zollicoffer, whether such children died before or since the sale to him, for certainly they can claim nothing in Beck or her issue, either by their then title or one subsequently acquired, they having sold her to Zollicoffer in severalty.

PER CURIAM. Judgment accordingly.

Cited: Weeks v. Weeks, 40 N.C. 119.