Martin v. Gould, 17 N.C. 305, 2 Dev. Eq. 305 (1832)

Dec. 1832 · Supreme Court of North Carolina

17 N.C. 305, 2 Dev. Eq. 305

James H. Martin v. Daniel Gould, et al.

Ia a gift by will to a child and grandchildren “ equally to be divided,” each of the latter take equally with the former, unless a different intention is inferred from other parts of the will.

This bill was filed by the executor of Daniel Gould, sen. to have a construction put upon the will of his testator. The will after giving all his estate to his wife -for life, proceeded thus : “ after her death it is my desire “ that all my estate both real and personal shall be sold “ at twelve months credit, and when the money is cól- “ lected for the land, the average value of one hundred “acres to he given to my son Daniel in order to make “ him compensation for one hundred acres of land “ which I gave to my son Malachi Gould. All the rest “of the money that is left, to be equally divided between “ my son Daniel and my three grandsons to wit, Ac. (na~ “ ming them,) to them and their heirs forever.” The defendants were the testator’s son Daniel and his grandsons mentioned in the will who were the sons of Malachi. The only question was whether the residue should be divided between them equally, or whether one half should be given to Daniel and the other to the sons of Malachi.

Mendenhall for the plaintiff.

No counsel appeared for the defendants.

EufitN, Judge.

Probably upon the authorities the construction of the residuary clause, standing by itself is, that the grand sons do not take as a class, but each of the three named take an equal share with the uncle. But what is doubtful here, is cleared up by the clause immediately preceding, which gives out of the aggregate fund' before the division, when the money for the land shall be collected, the average price of 100 acres to Daniel the son, “ in order to make him compensation for 100 acres which I gave to my son Malachi.>> This shows that the testator meant to deal equally between his two sons ; and to make the children of his deceased one stand in their father’s stead, and that the grand sons take their share as grandsons. Upon the whole will therefore it must be declared, that Daniel the son of the testator is entitled to one half the residue, and the three grand sons to the other half, to be equally divided between them, as they shall come of age. And the costs of this suit must be paid out of the fund in the hands of the executor.

Per Curiam.- — Decree accordiNgey.