Morton v. Edwards, 15 N.C. 507, 4 Dev. 507 (1834)

June 1834 · Supreme Court of North Carolina

15 N.C. 507, 4 Dev. 507

Mary Morton, et. al. v. Isham Edwards.

Where a testator liy one clause of his will gave his daughter two slaves absolutely, arid by a subsequent clause gave her another, and proceeded as follows, “which negro together with those I formerly lent her, at her death, to he divided between, her children.”' Meld, that parol evidence that the slaves mentioned in the first clause had, before the making of the will, been lent by the testator to his daughter was admissible, and that fact being established, that the second clause reduced her property-in them to an estate for life, with a remainder to her children.

Detinue for five slaves, tried on the last circuit before Norwood Judge, at Person.

Pxea — non detinet.

The plaintiffs claimed title to the slaves under the will of William McGehee their grand father. By the third clause of his will, the testator devised as follows : “ I give and bequeath unto my daughter Martha Morton two negroes, named little Ben and Jhney.” By the thirteenth as follows : “ Martha Morton to have a negro “ of seventy pounds value, which negro, together with “ those I formerly lent her, at her death to be divided between her children.”

Martha Morton died in the year 1832, leaving the plaintiffs her children. The slaves demanded in the writ were Jhney and her issue. The plaintiffs proved that in'thc year 1801, the testator lent Jhney and little Ben, to- Martha Morton and her husband. The defendant claimed under a sale made to him in November 1810 by George Morton, the. husband of Martha, and contended tliat by the will of the testator, an absolute interest in «Qmey was given to Martha Morion, which vested in her husband.

His Honor instructed the jury that if they should find that the slaves Jhneij and little Ben were the same slaves which had been lent by the testator to his daughter before the execution of the will, that by the thirteenth clause an interest for life only in the slaves,vested in Martha Morion, and an absolute interest in remainder in the plaintiffs, which would enable them to sustain this action .

A verdict was returned for the plaintiffs, and the defendant appealed.

. Winston and Norwood for the defendant.

W. *3. Graham for the plaintiffs.

Dawiei, Judge.

After stating the will of the testator, and the facts above set forth, proceeded : — In construing a will, the intention of the testator, if consistent with established rules of law must be observed, and no part to which a meaning or operation can be given, shall be rejected.

A will is not to be construed by adverting to a single clause only; every thing bearing on the subject which is to be discovered from the will itself, must be taken together, in order to ascertain the testators intention. Fa-rol or extrinsic evidence, is admitted, not to control a will, but to show' either with reference to what it was made, or to explain a latent ambiguity. (Bengough v. Walker, 15 Ves. 514.) Therefore parol evidence was in this case admissible, to show that the slave Amey w'as one of those referred to by the testator in the thirteenth section of his will, by the words, “ which negro, and those I formerly lent her, at her death to be equally divided between her children.” The evidence did shew that the slave Amey was one of those the testator had lent to his daughter Martha, and therefore fell within the bequest to her children after her death, by the thir-icenth section of the will. And the evidence likewise showed that she was the same slavedmey, that was give» in the third section of the will to Martha Morton. The question presents itself» whether the testator, having made a general bequest of the slave Jlmey to liis daughter by the third section, could by the subsequent thirteenth section, limit any interest in the said slaves by way of executory devise to her children? If the same slaves had been given absolutely to the-children by the-latter section of the will, which had been given to the mother by a former section, the mother and children would have been tenants in common according to the decision of ibis Court in the case of Field v Eaton. (Dev. Eq. It. 283.) The slaves bequeathed being identically the same in both clauses of the will, and the Court looking through the whole will to find out the meaning and-intention of the testator, feels no difficulty in pronouncing that intention to be, that Martha the daughter,should have an estate for life only in the slaves, by virtue of' the third section of the will, and that the after limitation by way of executory devise to her children, in the thirteenth section -was good inlaw. It is a doctrine-which hath prevailed at all times as to wills, that where there is a gift of property, and a subsequent limitation inconsistent with the former,as an absolute and complete-deposition of the thing, that does by necessary implication cut down the former limitation. (Wykham v. Wykham, 18 Ves. 421, 422.) We think the judgment rcn,-. dered in the Superior Court should be affirmed.

Per Curiam — Judgment aeeirmeb.,