Clarke v. Cotton, 17 N.C. 301, 2 Dev. Eq. 301 (1832)

Dec. 1832 · Supreme Court of North Carolina

17 N.C. 301, 2 Dev. Eq. 301

Mary S. Clarke et al. v. Spencer D. Cotton et al.

V legacy, where the legatee is not described so as to take, sinks into the residue; but one given by a description which applies to several, goes to the sovereign as derelict,

After the decree pronounced at June term, 1831, (ante p. 51,) this case came on for further directions upon the report of the master stating, that by the fifteenth clause of her will, the testatrix devised as follows: “ I give to “ Martha Barrow, daughter of Beunet Barrow, Esq. “ four hundred dollars.” By the twenty-ninth clause, she gave to Elizabeth Hunter five hundred dollars. Mr. Barrow had not at the dato of the will, nor ever had, before or since that time, a daughter called or known by the name of Martha; he had two daughters named Margaret and Olivia. No evidence was before the master, that either of these were intended by the testatrix to bo described by the name of Martha.

Upon the other clause, the master reported, that there Were many persons known by the name of Elizabeth Hunter; but that it was entirely uncertain who the testatrix alluded to.

There being a deficiency of assets to pay the pecuniary legatees, Devereux. for them, moved for directions to divide the two sums mentioned in the report, between them pro rata.

Hendersd!N, Chief-Justice,

after stating the facts above mentioned, proceeded: As to the legacy to,Martha Barrow, there being no testimony, if admissible, to prove the identity of the person intended, and the question being presented on the will and facts before stated; it is but common learning to pronounce the bequest to be void for uncertainty. There is no legatee designated by name, or by any other description. The bequest is therefore void, and the case is to be considered as if it had never been made. It is property undisposed of. and is to be taken to pay general legacies, and if not needed for that purpose, it sinks into the residuum..

Upon the other clause of tlie will, it being as yet entirely uncertain, who is the Elizabeth Hunter, intended by the testatrix, it is unlike the case under the fifteenth clause. For here a legatee capable of taking, may yet appear. The ambiguity arises from the fact, that there are many answering to the description, and it may be shown by parol evidence, which of them the testatrix meant. The legacy then,- is not property undisposed of, but property given to a person who does not yet appear. It must therefore, be kept for her, and if after a reasonable time, it bo not claimed by the legatee, it goes to the sovereign as the trustee of-all derelict property. In this state, the Trustees of the University have succeeded to this right of the sovereign, and at a proper time, they can claim the legacy.

Per Curiam. — Direct accordINgut.