Fagan v. Jones, 22 N.C. 69, 2 Dev. & Bat. Eq. 69 (1838)

June 1838 · Supreme Court of North Carolina

22 N.C. 69, 2 Dev. & Bat. Eq. 69

LEVI FAGAN et al. v. CALVIN JONES et al.

A legacy to A of $2000, “or the value thereof in property,” is a general legacy, and passes under the residuary clause of the legatee’s will, in which he disposes of “ all his personal estate of what nature soever, consisting of my undivided share in the negroes &e. coming to me from my father’s estate, as well as all personal property I may have-acquired since my father’s death,” although the legacy vested before that event.

Joseph Webb, in the year 1819, made his will, by which he bequeathed as follows: — “ I give and bequeath unto my favorite friends, William A. Bozman, Harriet Bozman and Joseph Bozman, children of Levin Bozman, two thousand dollars each, or the value thereof in property to them and their heirs for ever.” In the same terms he gave other Ie-gacies> an^ died in the year 1823, when his will was duly proved. Levin Bozman the father of the legatees above. mentioned, died in the year 1824, and in the year 1826, Joseph Bozman, one of the said legatees, made his will and bequeathed as follows: — “ In the first place, I give unto my sister Harriet my bed and bedstead, together with the furniture belonging to it. In the second place I give unto my brother William A. Bozman, all my personal estate of what nature soever, (except the donation above mentioned to my sister Harriet,) whether consisting of my undivided share of negroes and money coming to me from my father’s estate; or whatever else of personal property of my undivided share, as well as all personal property I may have acquired since my father’s death, to him, his heirs and assigns for ever.” He died in 'the year 1826, and his will was duly proved.

The personal estate of Webb was insufficient for the payment of his debts and legacies; and' his land was sold under an order of the Court of Equity for the county of Washington. The money raised by the sale of it being-paid into the Clerk and Master’s office, it was agreed that it should be paid to the plaintiff Fagan, if the Court should be of opinion, first that the legacy of Webb to Joseph Bozman, was a general legacy-, and secondly if it. passed under his will to William A. Bozman.

A. Moore, for the plaintiff Fagan.

Heath, contra.

Daniel, Judge,

after stating the facts as above set forth, proceeded as follows: — It is submitted to us to say in the first place, whether the legacies" given in the abqve recited clause of Joseph Webb’s will, are -general legacies. We answer that they undoubtedly are general legacies. The words “ or the value thereof in property,” are to be considered only as a charge on the real and personal estate of the testator to satisfy those general legacies. There is no particular part of the real or personal estate specifically devised or bequeathed. The testator has given in the same words legacies of different amounts to all the. other legatees named in the will. ' '

The second question is, whether that portion of the legacy of Joseph Bozman raised out of the sale of Webb’s land, or any portion of the said legacy of $2000 to Joseph, pass under his will to his brother William. We have before stated, that the whole legacy of $2000, was a general legacy, and constituted a part of Joseph Bozman’s personal estate. But as Webb, who gave the legacy, died a year before the death of Levin Bozman, (the father of Joseph,) it is urged that Joseph Bozman died intestate as to that portion of his personal estate acquired before his death. We think Joseph Bozman did not mean to die intestate as to any of his personal estate. Excepting the bed to his sister, he .gave to his brother William all his “’personal estate of what nature soever.” These are terms of the most comprehend sive character and are not to be restrained but by expressions manifesting a plain intent to narrow them down. The words superadded do not shew this intent. They are not a specification of the things whereof the personal estate given does consist, thus explaining and qualifying the general bequest, but a recognition of things constituting a part of that general bequest which the testator was apprehensive might be thought not to fall within it. The whole personal estate is bequeathed whether it consist of the enumerated subjects or not.

■ It follows that according to the agreement of the parties the money which is the subject of controversey in this case, is to be paid to Levi Fagan.

Per Curiam. Decree accordingly.