Felton v. Billups, 21 N.C. 584, 1 Dev. & Bat. Eq. 584 (1837)

Dec. 1837 · Supreme Court of North Carolina

21 N.C. 584, 1 Dev. & Bat. Eq. 584

KEDAR FELTON et Uxor v. JOSEPH R. BILLUPS et al.

Dec. 1837.

A testator bequeathed as follows: — “ I lend unto my grandson O. R. three negroes, &c. Now, if, in case that the said O. R. should live to arrive to manhood, and beget heirs lawfully, the above property to him and his heirs forever; if not, I give and bequeath the above-mentioned property, unto my son J. R., to him and his heirs foreverThe grandson O. P. was an infant at the date of the will, but attained the age of twenty-one, and then died, without ever having been married. It was held, from the use of the word “ lend,” that the testator intended to give a life-estate to his grandson, to be enlarged into an absolute one upon his marrying and having children; that the word “manhood,” could not be construed to mean “ twenty-one years of ageand that there was nothing to authorize, the change of “ and” into “ or and that, consequently, the grandson, although attaining twenty-one years of age, having died without having been married, the ulterior limitation took effect.

Josiah RogeRSon, in the year 1806, made his will, which contained the following clause: “ I lend unto my grandson Obadiah Rogerson, a tract of land; three negroes, Dick, Rose, and Yiney. Now, if in case that the the said Obadiah Rogerson should live to arrive to manhood, and beget heirs lawfully, the above property to him and his heirs forever; (if not,) I give and bequeath the above-mentioned property, unto my son Jeremiah Roger-son, to him and his heirs forever.” What was the age of Obadiah, at the date of the will, was not stated; but it was stated and admitted that he was then an infant and an idiot; and he died in the year 1836, of mature age, having never been married. The defendant Billups, was his administrator, and in that character, had possession of the slaves. Jeremiah Rogerson died in the year 1835, and the plaintiffs were his administrators and next of kin. The plaintiffs contended that they were entitled to the slaves inasmuch as Obadiah died and never “ begot heirs lawfully.” The defendants contended, that as Obadiah arrived to “ manhood,” which must mean the age of twenty-one years, the title of the slaves vested absolutely in him. They also contended, that the word “and,” should be construed “ or,” so that if either of the alternatives happened, viz. Obadiah’s living to arrive to “ manhood,” to wit, twenty-one years, or begetting lawful issue, the property in the slaves vested absolutely in him : that the construction should be, that the limitation over to Jeremiah should fail, unless Obadiah had died under twenty-one years of age, and also, without begetting issue.

Devereux, for the plaintiffs.

Kinney, for the defendants.

Danieu, Judge,

after stating the case as above, proceeded as follows. — In construing wills, the leading rule is, that the intention of the testator should be observed; and that no parts of a will to which a meaning or operation can be given, shall be rejected. It sometimes happens, that a whole sentence in a will is rendered uncertain or unintelligible, from the circumstance of the testator’s having used the disjunctive “ or” when the copulative “ and,” should have been inserted; et sic e converso, “ and,” for “ or.” In order to effectuate the intention of the testator and give validity to the bequest, the Courts have corrected the mistake. Each case of course being governed by its peculiar circumstances, no general rule can be laid down upon the subject. 2 Roper on Leg. 290. The Court construes those words so as to effectuate the general intention. It follows, therefore, that it will not consider itself warranted in making the alteration, unless it be clearly authorized by the meaning of the testator, as collected from the whole will. 2 Roper on Legacies, 294. In the case before us, it seems that the testator meant, by his using the word “ lend,” to give the property to his grandson for life, at all events, as a provision and maintenance; and if Providence permitted him to become the father of a family, then his life-estate was intended to be enlarged into a fee; and on that event the ulterior limitation to Jeremiah should fail. We do not consider that the testator, by using the very indefinite sentence “should he” (Obadiah) “live to arrive at manhood,” intended to fix a period when the life-estate should be at all enlarged, without the main thing also happening, viz. his, Obadiah’s, “ begetting lawful heirs.” The testator did not intend that his son Jeremiah should lose his bounty, unless in the event of his grandson Obadiah having issue ; and in that event he designed that the issue should, through their father, have this property, or at least a chance for it. The property was intended for the benefit of Obadiah and his issue, if he should have any; if not, then for the benefit of his son Jeremiah. We cannot, therefore, in this case, construe “ manhood,” to mean “ twenty-one years of age;” and there is no necessity to change the word “ and,” into the word “ or,” as the testator did not intend to enlarge the life-estate, but in one event, viz. Obadiah’s having lawful issue. That event did not t.ake place; and the plaintiffs are entitled to the slaves, and personal property, and to a decree for an account of the same.

Per Curiam. Decree for the plaintiffs.