Ponton v. McLemor, 22 N.C. 285, 2 Dev. & Bat. Eq. 285 (1839)

June 1839 · Supreme Court of North Carolina

22 N.C. 285, 2 Dev. & Bat. Eq. 285

MUNGO T. PONTON, Ex’r. of JOEL H. McLEMORE vs. ELIZABETH McLEMORE et al.

Where a testator gave to his friend H. D. certain slaves “ in trust for the support and maintenance of his daughter M. E. A., ■with an equal share of the proceeds of the sale of properly which he should empow-erhis executors to sell, with the exception of @500, to be taken out of the part of his daughter, of the money that might remain after paying his debts,” and, after giving certain other slaves to his wife, and her children, and directing what property was to be sold, concluded as follows: “ after the payment of my just debts, the surplus, if any, I wish tobe equally divided between my wife and her children, and the part which 1 design for my daughter, with the exception of $500 aforesaid, to my friend H. D., as aforesaid in trust, for the support and maintenance of my daughter M. E. A. The property I hereby leave in trust, for the benefit of my daughter M. E. A., is to be applied at the discretion of the trustee, foi the support and maintenance of M. E. A, and her children; and no part or parcel thereof to be subject to the debts of her husband.” It was held, that the $500 was taken out of the daughter’s share, and went to increase the balance or “surplus” that was to be divided between the testator’s wife and children; and that the bequest, in favor of the daughter, was given to her sole and separate use/or life, and after her death, in trust for her children.

Joel H. McLemore, by his last will and testament, devised and bequeathed as follows: “I give the following property to my friend, Henry Doggett, in trust, for the support and maintenance of my daughter, Mary E. Avent, viz: Austin, senior, Cynthia, Emanuel, Daniel and Chaney, with an equal share of the proceeds of the sale of property, which I shall empower my executors to sell, with the exception of five hundred dollars, to be taken out of the part of my daughter, of the money that may remain, after paying my just debts; the balance of my negroes, I wish to be equally divided among my wife and her child James Henry, and the one with which she is now pregnant. It is my wish and desire, that should I die shortly, that my executors sell the lots and houses I own in the town of Halifax, upon such credits as may seem to them best calculated to enbancp the value of the property, together with all household and kitchen furniture; and, at the end of the year, I wish them to sell my /land, lying below the town of Halifax, and all my stock, crop and plantation utensils; the manner of selling, I leave to my executors; and, after the payment of my debts, the surplus, if an^’ * t0 ^e equally divided between my wife Elizabeth and her children; and the part which I design for my daugh-terj t]ie exception of five hundred dollars aforesaid, to my friend Henry Doggett, as aforesaid, in trust for the support and maintenance of my daughter Mary E. Avent.. — . The property I hereby leave in trust, for the benefit of my daughter Mary E. Avent, is to be applied at the discretion of fhe trustee, for the support and maintenance of Mary E. Avent, and her children, and no part or parcel thereof to be subject to the debts of her husband.”

This bill was filed by the executor, stating the death of the husband of the testator’s daughter Mary E.° Avent, and the refusal of the trustee to act, and asking the advice of the court, as to the proper construction of the will, in the foliow-ing particulars, viz: First, whether the sum of five hundred dollars, directed to be reserved out of the said Mary E. Av-en t’s share of the proceeds of the sale, was a legacy given to her ábsblfifely,'-or wvas intended .to be added to the share thereof of his widow and her children, or whether the testator had not died intestate thereof. Secondly, whether the said Mary El Aven't and her children had any other interest in the bequests to the trustee, Doggett, beyond support and maintenance'during their lives and the life of the longest liver of them; and Whether, if they had any interest beyond such support and maintenance, the said Mary E. Avent had the absolute interest, or she and her children were tenants in common, or whether she was tenant for life with the remainder to her children.

No counsel appeared in this Court for the plaintiff.

B. F. Moore for Mrs. McLemore and her children.

Badger for Mrs. Avent and her children.

GasítoN, Judge.

One of the questions presented in this case is free from difficulty. It is clear that the sum of $500, in the testator’s will, is mentioned by way of diminution of, or deduction from, the share of the residue bequeathed in trust for Mrs. Avent and her children — and, therefore, the balance or “surplus,” to be divided between the testator’s wife and her children, is increased by that amount.

But the other question is by no means so easily answered. Taking into consideration, however, the pointed declaration of the testator, that “ of the part designed for his daughter” he desires that “ no part or parcel be subject to the debts of her husband;” that the bequest thereof is made to a trustee; that the trusts are to be collected from intimations as to the object of his bounty in different, parts of his will; that in the first part, his daughter, Mary E. Avent, is solely named as that object; and, in the latter part, his said daughter and her children are all named as such objects, we are of opinion that the testator’s purpose will be most effectually promoted by holding that the bequest was made in trust for his daughter, Mary, to her sole and exclusive use for life, and after her death, then in trust for her children. This interpretation, we think, is the more strongly called for, because, if we construe the immediate beneficial bequest to be made to Mary E. Avent and her children, none of the children could take under it, but those in being at the death of the testator^. This, we are satisfied, could not have been his intention

Under this construction, it will be necg tee appointed in the place of Mr. Doggett, fljtiio declines 1

Pee. CuRiam. Decjj