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Jack, etc., Trustee of v. Vass, Exr. of Philip E.: Chancery Cause, Halifax County (Part 2 of 2)

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Young & als vs Vass's exor: I regret that the able Judge, whose decision is brought under our review by this appeal, has not favored us with an opinion setting forth the reasons or grounds of his decree; because had he done so, it cannot be doubled from his acknowledged judicial eminence, they would have been entitled to high respect, and calculated to enlighten us in our deliberations, and to persuade, if they had failed to convince our judgments. Without the benefits then of the lights which he doubtless could and would have shed on the subject, in proceeding to express my views, I feel warranted in laying it down as a clear proposition upon the principles of reason, equity and justice, if there were no authorities to guide, that when a legacy is given to a person for a particular purpose, which it becomes impossible to appropriate to that purpose without any fault or demerit on the part of the legatee, he ought nevertheless to be entitled to the legacy, and that the purposes for which given, expressed in the will, ought not to operate as a condition to the bequest and upon the very plain and obvious principle, that the fund being designed for, and appropriated to the benefit and advantage of the legatee, the mode in which it shall be applied or enjoyed is but a secondary object and consideration, and ought not to be held as entering into the substance of, or constituting a qualification or condition of the gift. And so we find in this case (as we shall very generally, if not universally find) the rules of law, or legal construction, and reason concurring, that point has been so ruled and settled by authority in the cases of Barton vs Grant 1 Vern:255. Nevill vs Neville 2 Ver: 431. Burton vs Cooke 5. Ves: 542 cited in 1 Roper on legacies 430. 2 Lomax exors 73.74 and cited and approved by our own court of appeals in Rowlett vs Rowlett 5 Leigh 20, and as it is not to be presumed that the Judge in the court below was unapprised of these authorities or being cognizant of them disapproved, and intended to disregard or overrule them, I must conclude that he proceeded either upon the ground that they were distinguishable from the case under consideration for the same or reasons similar to those assigned in the argument of the appellees counsel; or upon the principle established by another class of cases - that is to say - that this will, instead of giving a legacy of money or other thing, directly to the legatee for a specified purpose, created or interposed an executory trust merely in their favor of such a nature, as that at the date of the will or the death of testator, it was, or by matter ex post facto, - the disabling or prohibitory and penal legislation of North Carolina in reference to free persons of colour - because incapable of execution in the manner prescribed by the will, and that therefore, as in case of bequests void by statute, or because of the incapacity of the legatee to take for vagueness and uncertainly or for any other cause, the trust wholly failed, and the property or money given