Doe ex dem. of David v. Roe, 12 N.C. 382, 1 Dev. 382 (1828)

June 1828 · Supreme Court of North Carolina
12 N.C. 382, 1 Dev. 382

Doe ex dem. of David and William M. Clark v. Roe, Samuel Hyman and William R. Bennet.

From Martin.

In a will, real estate does not pass by the words “ all my property and possessions consisting’ of both personal and perishable” with the fui liter expressions, “that they should pay my debts of it, and the residue to, &c. to have and to hold to them, their heirs and assigns forever.”

Ejectment tried before Dantee, Judge, on the last Fall circuit. The lessors of the Plaintiff claimed by de-scentfrotn William Darlet, the Defendants as his devisees, and the only question was, whether the land of which lie died seised, passed by his will.

The case stated, that Darlet being seised of a large real, and possessed of a considerable personal estate, made and published his will, duly executed to pass land, which had been proved in the County Court, and was in the following words :

“In the name of God amen. I William Darlet, of &c. being weak, &c. but &c. do hereby constitute and appoint this my last will and testament (revoking and disannulling all others heretofore made by me) in manner and form following, viz. Item. I give and bequeath (after the payment of my just debts) all my property and possessions consisting of both personal and perishable, to my much esteemed friends Samuel Hyman and William R. Rennet, both of &c. and it is my will and desire that they should pay all my debts of it, and the residue to be *383equally divided between tliem, to have and to hold to them, their heirs and assigns forever. In testimony wnereof I nave hereunto set &c.”

His honor Judge DaNiei, informed the Jury that the lauds of the testator did not pass by the will, but scended to his heirs. A verdict was returned for the lessors of the Plaintiff, and the Defendants appealed.

Gaston, for the Defendants,

cited Ilaxtep v. Brooman, (I Bro. Gh. Rep. 437.) Doe \. Langland, (14 East. 371). He distinguished this case from that of Roe ex dem. of Helling v. Feud, (2 New. Rep. 214,) because in that case there was noprovision applicable io real rsratc — no clause indicating an intention in the testator to dispose, of it.— Here both of these, circumstances exist ; In that case the words “ heirs and assigns” did not occur, here they do, seemed that the testator had nothing in view but personal estate, here his words comprehend all kinds of property. There the debts and legacies were to be paid by the executors in their character of executors, there was no charge of them upon the estate, while here the debts were charged upon the property.

Hogg & Badger on (lie other side, were stopped by the Court.

Taylor, Chief Justice.

The only question in this case is, whether by the words “all my property & possessions, Consisting of both personal and perishable,”- given to the Defendants, with the further expressions, “ that they should pay my debts out of it, and the residue to be equally divided between them, to have and to hold to them, their heirs and assigns forever,” the lands of the testator passed. If these words were sufficient to pass them, a verdict and judgment should have been entered for the Defendants ; if not, the Plaintiffs as heirs at. law, are entitled to recover. That the words property, possessions, or estate are sufficient, if not qualified by the context to bear a narrower signification, to carry real *384estate, is well settled by many decisions ; but it is othcr-wise, if it appear from the context, that personal estate only was in the contemplation of the testator. It is ar-gU(.(] f0,. ti,e Defendants, that the testator meant, by the words “ both personal and perishable,” as referred to “ property and possessions,” two distinct kinds of property, viz. real and personal; for (hat personal property is in its nature perishable, and therefore Jbe last word would be redundant and unmeaning, if not confined to personal property. It is strictly speaking true, that all personal property is perishable, but our acts of assembly have often mentioned personal property, as perishable and unperishable, and have rendered the terms familiar in common use. Thus the act of 1723,ch. 15, empowers the executor to sell, by the directions of the Court, so many of the imperishable goods, as will pay and satisfy the debts; and the act of 1762, {Rev. ch. 69.) directs the guardian to dispose of such goods and chattels of the ward, as may be liable to perish, consume or be the worse for keeping. There is a similar division of personal property in the civil law. A book, or a horse is called in-consumable, in opposition to corn, wine, money and those things which perish, or are parted with in the use.

The case before us would resemble the case of Doe ex dem. of Wall v. Langland, cited from 14 East. 371, provided the words of the will had been property and possessions, personal and perishable $ for then, according to the principle of that case, the words possessions personal and perishable,” might have been taken cumulatively, and notas descriptive of the kind of property the testator intended to give. The words in that case were “ property, goods and chattels,” and the Court said they would not read the w ill property, namely, or viz. goods and chattels;” but they would consider the word property as unrestricted, and efficient to carry the real estate. The plain difference between the cases is, that here the testator declares by the words “ consisting of” *385what he meant by property ami possessions, and leaves no ground for a different construction. There are many other words, which if standing uncontrolled, or no specification made that personal property alone meant by them, will be sufficient to pass real estate, as “ all I am worth.” (Haxtep v. Brooman, 1 Bro. Ch. Rep. 437.) So “ all that-I possess both in doors and out of doors.” (Tolar v. Tolar, 3 Hawks, 74). But even the word estate, which by itself is the most comprehensive one that can be used, will when coupled other words indicative of personal property, be so restrained. (Cliffe v. Gibbons, 2 Ld. Raymond, 1324). Where there was a devise of the residue of effects, after a partial disposition of real and personal estate, it-was held not to carry real effects. (Camfield v. Gilbert, 3 East. 516). The case of Timewell v. Perkins, (2 Atk. 102,) bears a strong resemblance to the one before us. The words of the will were all my freehold lands in the tenure ot the widow L, and the residue of my estate consisting in ready money, jewels, leases, mortgages, &c. or in any other thing wheresoever or whatsoever, I give to A. B. or her assigns forever.” It was held that the residue, of the real estate did not pass to A. B. because the word estate is expressly confined to personals. In conformity with these authorities, the case of Harris v. Mills was decided in this Court. There the testator gave and bequeathed to his son Hood Harris, and his.four daughters who ii\ed with him, all the rest of his estate, consisting of various articles too tedious to mention. (I Law Repos. 536).

The intention of the testator to devise his land is argued from the words “ to have and to hold, to them, their heirs and assigns forever,” being applicable to lands.— They are so, but there is nothing to show that he was aware of it, for his want of information on such a subject is apparent from the whole will. Upon the supposition that he intended to pass land, it cannot be inferred that he knew the import of those terms, when he knew *386no(; q1P proper terms fo devise real estate. If. is also said, that direction to pay the debts out of it, is iridica-tive of his intention ; but that pronoun is properly app¡¡CH|j|e t() tj,e bulk of the things bequeathed, as if he bad said, to be paid out of my personal and perishable property. Taking then the rule to be dear, that the heirs at law are not to be disinherited, unless the testator’s intention to do so can be collected from the words of the will, which must convey a necessary implication, I cannot doubt that the judgment should be affirmed.

Per Curiam. — Judgment affirmed.