Sessoms v. Sessoms, 22 N.C. 453, 2 Dev. & Bat. Eq. 453 (1839)

Dec. 1839 · Supreme Court of North Carolina

22 N.C. 453, 2 Dev. & Bat. Eq. 453

ALONZO P. SESSOMS et al. vs. ELISHA SESSOMS, Ex’r of CELIA FREEMAN et al.

Where a testator, after giving several pecuniary legacies in “dollars” proceeded as follows: “Item, I likwise leave all .my lands and plantation to he sold by my executors, and pay five- hundred to my brother . N. S’s children, to be equally divided; to them and their heirs forever. Item, I give and bequeath E. S. one thousand dollars, to him and his heirs forever. Item, and also all the residue,of my estate to be sold by my executors, and all my just debts to be paid — those legacies to be paid off which I have already given away, and the balance, if any, to be equally divided between E. S.” and others: It was held thattheword “five hundred” meant five hundred dollars, and was a legacy of that sum to the children of N. S.; and that the legacy was a general one.

The plaintiffs, who were the children of Nathan Sessoms, filed their bill to recover a legacy of $500; which they alleged that they were entitled to receive under the will of Celia Freeman. The objections on the part of the defendants were, first, that no such legacy was given- by the will. But, secondly, that if there were such a legacy, it was a specific legacy, or a legacy payable out of the land only; and that the fund out of which it was intended to be raised, had failed, in consequence of the will’s having been attested by one witness only: that the power intended to be given to the executors, to sell the land, and pay the five hundred dollars out of the proceeds, was not good in law, for the want of two witnesses to the will. Celia Freeman, the testatrix, in the first and second pages of her will, gave several specific and pecuniary legacies. The sums in all the money legacies, were mentioned in dollars. Then came the following clauses: “Item, 1 likewise leave all my lands and plantation to be sold by my executors, but one acre to include-graves, and pay five hundred to my brother Nathan Sessoms’s children, to be equally divided, to them and their heirs forever. Item, I give and bequeath Elisha Sessoms the sum of one thousand dollars, to him and his heirs forever. Item, and also the residue of my estate to be sold by my executors, and. all my just debts to be paid — those legacies to be paid off, which I have already given away; and the balance, if any, to be equally divided between Elisha Sessoms” and others.

A. Moore for the plaintiffs.

Iredell for the defendants.

Danikl, Judge,

after stating the case as above, proceeded as follows: In the construction of wills, the intention of the testator is to govern, if such intention do not contravene any rule of law. And to ascertain that intention, the court may look through the whole will. Taking these rules for our guide, we cannot fail to see that it was the intention of the testatrix, that the words u pay five hundred” were to pay five hundred dollars. All the money legacies in the will, which are both before and after the clause, in question, are expressed in dollars. In the said clause, the testratrix directs her executors-to pay the said sum to the plaintiffs. It is therefore a legacy. A legacy is defined to be, “some particular thing or things given or left, either by a testator in his testament, wherein an executor is appointed, to be paid or performed by his executor, or by an intestate in a codicil, or last will, wherein no executor is appointed, to be paid or performed by an administrator.” Williams on Ex’rs 694. Godolph. Pt. 3, cb. 1, sec. 1.

Secondly. Is the legacy a general legacy? We think it is. The testatrix intended to convert her lands out and out, and add the purchase money to her personal estate. Now, whatever force there may be in the argument, that as the power to the executors to sell the land, is in the same clause in which she directs her executors to pay the plaintiffs the $500, this is tantamount to declaring that the executors are to pay the said sum out of the purchase money, we need not enquire:. For her declaration in the residuary clause of the will, “those legacies paid off which I have already given away,” shew a plain intention on her part, that the plaintiffs áhould have the sum, as a general legacy. We are of the opinion that the executors must account, and if the personal estate not specifically given away, be insufficient to pay all the general legacies, then they must abate in proportion.

Per Curiam. Decree accordingly.