Wadsworth v. Armfield, 21 N.C. 323, 1 Dev. & Bat. Eq. 323 (1836)

June 1836 · Supreme Court of North Carolina

21 N.C. 323, 1 Dev. & Bat. Eq. 323

WILLIAM WADSWORTH et al. v. DAVID ARMFIELD et Uxor.

June, 1836.

A testator bequeathed a negro woman, together with several other articles of property, to his wife, for life, and after her death, he gave all the property except the negro, to be equally divided among five daughters. The negro woman he bequeathed after his wife’s death to. his daughter B., adding, “ after the said negro is appraised by two freeholders; and B. shall pay unto each of her four sisters above-mentioned one-fifth part of the said appraisement” It was held, that after the death of the widow, the four sisters, were entitled each to one-fifth of the valde of the increase which the negro woman had borne during the life of the widow, as well as of the value of the negro woman herself.

Josiah Trotter, in the year 1792, made his will, and bequeathed as follows: “ First, all my debts to be paid. Secondly, I give and bequeath to Jane, my wife, during her widowhood, the plantation whereon I now live, with three hundred acres of land, together with' all my household goods, debts and moveable effects, as horses, cows, hogs and sheep, and one negro woman named Beck, one negro girl named Ailse. Thirdly, I give and bequeath, at my wife Jane’s decease, either of life or widowhood, all my household goods, debts and moveable effects, as horses, cows, hogs and sheep, unto my five daughters, Nancy, Rachel, Jane, Betsey and Mary. Fourthly, I give and' bequeath unto my daughter Betsey, at my wife Jane’s decease, either of life or widowhood, the negro woman Beck, after the said negro is appraised by two freeholders; and Betsey shall pay unto each' of her four sisters above-mentioned, one-fifth part of the said appraisement, but shall have ten years to raise the money in, and the negro shall be hers.” To his five daughters above-mentioned, the testator gave no other property by his will than that above set forth. The negro Ailse, he gave, after the death of his wife, to a sixth daughter, named Hannah. All the lands which he owned he gave to his sons. After the death- of the testator, and during the life of his widowj the slave Beck had issue five children and grandchildren. Betsey intermarried with the deféndant Arm-field, who, after the death of the widow, Jarte Trotter, in right of his wife, took possession of Beck and her increase, and contended that he was only bound to account with the other four sisters of his wife for four-fifths of the value of Beck only; and that he was by law entitled to hold her increase, as his absolute property, without any contribution. The plaintiffs, who were the other four sisters or their assignees, contended, that by a proper construction of the will of Josiah Trotter, they were entitled to four-fifths of the slaves, or four-fifths of the value of Beck, and her issue born at the death of the widow; and they prayed a division of the slaves, or an account of their value, and that the same might be'secured to them.

Nash and J. M. Moreliead, for the plaintiff.

Mendenhall, for the defendant, cited I Roper on Leg. 382, 396, and Blamire v. Gildart, 16 Ves. Jun., 314.

Daniel, Judge,

after stating the case as above, proceeded : — The argument on the part of the defendants is, that under the will, a vested interest in Beck passed to the testator’s daughter, Betsey; and that the issue of Beck, born since the vesting of that interest, accrued to the said daughter by operation of law% That the legacies charged upon that bequest are pecuniary legacies, the amount whereof is to be ascertained when Betsy takes Beck into possession, and that amount is also made dependent on the value at which Beck shall then be appraised: And that, without inserting words in the will which it does not contain, the appraisement must be confined to Beck alone. We do not yield to the force of this argument. The Court cannot, indeed, under the pretence of construction, alter a will. They must find enough in it to manifest the intention which they attribute to the testator, but it is not necessary that this intention should be expressed with critical precision. On the will, it is apparent that the testator designed that his five daughters should share equally of his bounty. He makes no mention of the increase of Beck, either in the bequest of her to Betsey, or in the appraisement which he (directs of her value for the benefit of Betsey’s sisters. The appraisement is to be made when Betsey is entitled to the possession of Beck; and what Betsey then obtains by means of this bequest, is to be valued, so as to give her sisters an equal share thereof. Ünder the name Beck, she received not Beck alone, but Beck with her fruits or increase. In the valuation for the purpose of an equal division, not Beck alone, but Beck with her attendant fruits or increase is to be comprehended. It is not the legacy as vested, but as enjoyed, which the. testator directed to be appraised. Had Beck died without increase during the existence of the particular estate, Betsey could not have been called upon for contribution, although her interest in remainder had completely vested; because the charge was upon her legacy, after it should come into possession. It should, therefore, bé valued such as it then was. Any other construction would do violence to the plan of the testator.

Per Curiam. Decree for the plaintiffs.