McCabe v. Spruil, 16 N.C. 189, 1 Dev. Eq. 189 (1828)

June 1828 · Supreme Court of North Carolina

16 N.C. 189, 1 Dev. Eq. 189

James McCabe & wife and others v. Benjamin Spruil and others, executors of Charles Spruil.

From Tyrrell.

A testator directed his lands to be sold and the proceeds divided among his “ heirs not heretofore mentioned.” Held,

1st. That the laud should be considered as money, and that the word a heirs” meant those who were entitled under the statute of distributions.

2d. That the words “ not heretofore onentioned” applied only to those taking beneficially under the will, and not to a legatee in trust.

This cause was ¡¡card iu the Court below, bv his honor Judge Martin, on the Fall Circui^^íp^TN’líen the facts were, that Charlen Spruil dwy^nfette fnfrN&ijl, ,. and appointed the Defendant Benjamin his brother, one. of his executors. After several pecüiij^^l^acií'llo'íís a relations, and among them one to IholÍDcfendant Benia-1 min, in trust for a sister of his and tne •re.vtMofpirty oe-J’ vised as follows :—

“ My will and desire is, that all my other estate both “ real and personal, be sold at the discretion of my ex- “ ecutors, and the money arising therefrom to be equally “ divided amongst my other heirs, not heretofore meu- “ tioned.”

Two questions were submitted to his Honor, viz.

1. Whether the fund, created by the sale of the land belonging to the testator, should be divided among his personal or real representatives, who were parties to the suit.

2. Whether the mention made of the Defendant Benjamin, in the first part of the will, appointing him a trustee for his sister, prevented him from claiming any part of the residuum.

His Honor decreed that the proceeds of the land should be divided according to the statute of distributions, and that the Defendant Benjamin, was not entitled to any part of the residue-

From this decree, the Defendant Benjamin, appealed to this Court.

Hogg, for the Appellant,

upon the first point, cited Holloway v. Holloway, (5 Ves. 402) — Bridge v. Mibot (3 Bro. Ch. Rep. 224) — Evans v. Charles, (l Ansí. 128.) Upon the second point he contended, that by the words “ heretofore mentioned,” the testator obviously meant those who took a beneficial interest under the will.

Gaston & Badger, contra,

cited Croom v. Herring, (4 Hawks 393) and I)oe ex deni, of Stewart v. Sheffield, (13 East. 526.)

Tayior, Chief-Justice.

It is a well known rule of equity, that land directed to be sold and turned into money, shall be considered as money, unless there is some plain intention to the contrary, and whether the direction is given by will, or any other instrument, makes no difference.

What description of persons is to be understood by the word heirs, as applied to personal property, has not been positively settled by any adjudication, though strong opinions have at times been expressed upon it. Thus in Holloway v. Holloway, it is said, that though the word heirs has a definite sense as applied to real estate, yet as to personal estate, it must mean such persons as the law points’.out to succeed to personal property. If personal property were given to a man and his heirs, it would go to his executors. And this is the only construction we can give to it in this will, which will therefore confine the bequest to such as are entitled under the statute of distribution.

I'do not think there is any sufficient reason for excluding Benjamin Spruil from this distribution. By excluding those who had been mentioned in the will, the testator must have meant those for whom some provision had been made ; but none w'as made for Benjamin, who seems besides to have been an object of the testator’s confidence, since be had' appointed him executor, and trustee for his sister. In this respect only, the decree appealed from is incorrect.

Per Curiam.

— Let the decree below be affirmed, as to so much of it by which the mode of distribution is pointed out, and reversed as to the exclusion of Benjamin. Let the costs of the Court below be paid out of the fund, and the costs of this Court by the Plaintiffs.