Blacknall v. Wyche, 23 N.C. 94, 1 Ired. 94 (1840)

June 1840 · Supreme Court of North Carolina

23 N.C. 94, 1 Ired. 94

JONATHAN BLACKNALL et al. vs. JAMES WYCHE, Adm’r of THOMAS BLACKNALL, Sen’r et al.

Where a testator, after giving certain legacies to his children, and directing that the residue of his estate should be equally divided between them, upon their accounting for the advancements which they had received, added, “ this direction is not to apply, in case a negro lent or given shall die before me, that being my loss; but when any of the said negroes shall' have been sold, or suffered to be sold, they shall be charged at their value at the period of such sale, except in case of my grandson T., son of my deceased son G. B., who is to pay to my executors $500, in full of all advane&nents made to him or to his father;” it was held that the grandson was bound to account for only the sum of $500, and not for that sum, in addition to the value of two negroes which had been given to his father and sold by him; and that no parole evidence could be received to shew that the testator intended his grandson to account for the $500, in addition to the value of the said negroes given to his father.

The question, in this case, arose upon a petition for the settlement of the estate of Thomas Blackmail, senior, deceased, and was as follows: By the fourth and fifth clauses of the said Thomas Blacknall’s will, he bequeathed as follows, viz:

“ Fourthly. The residue of my estate of every description I wish to be divided between all my children equally, except those named in the foregoing clause; subject to the limitations and restrictions which may hereafter be annexed to any of the said bequests; and where any of my children may have died, or shall die, the child or children of such deceased child shall stand in the place of his or their parent; but nothing in this clause is to be construed so as to give to the present or future children of Nancy Hayes or Lucy Hicks any share in my estate.”

“ Fifthly. It is my will and desire, that all my children and their representatives claiming any interest in my estate under the foregoing clause, shall, before receiving their share, account with my executors for the negroes I may have heretofore lent or given, or shall hereafter lend or give, at their value, at the time of my death. This direction is not to apply, in case a negro lent or given shall die before me, that being my loss; but when any of the said negroes shall have been sold, or suffered to be sold, they shall be charged at their value at the period of such sale, except in the case of my grandson Thomas, son of my deceased son George Black-nail, who is to pay to my executors five hundred dollars in full of all advancements made to him or to his father.”

The father of Thomas Blacknall, Junior, had received from the testator, in his life-time, as advancements, two negro slaves. The plaintiffs insisted that by the true construction of the said clauses of the testator’s will, the defendant, Thomas Blacknall, Jun., was bound, in dividing the residue, to account as well for the value of the said two negro slaves, as for the said sum of $500, in the 5th clause of the will mentioned; while the defendant, the said Thomas, contended that by the true construction of the said clauses, he was bound only to account for the said sum of $500. And this question being presented at the hearing at Granville, on the last circuit, before his honor Judge Dick, he was of opinion that the latter construction was right; and thereupon the plaintiffs, insisting that if the meaning contended for by them did not appear upon the face of the said will, it was the case of an ambiguity affecting the instrument, capable of being explained by parole evidence, offered to prove by witnesses, that the testator’s intention was, that the defendant, Thomas, should account as well for the $500, as for the value of the said slaves; which evidence the Judge refused to hear; and thereupon declared and decreed that the defendant, Thomas in the division of the said residue, should be charged with, and account for, only the sum of $500, as for the value of the said slaves: from which decree the plaintiffs prayed an appeal to the Supreme Court, which his honor was pleased to allow; and directed that the foregoing statement should form the case for the consideration of the Supreme Court.

Battle, for the plaintiffs,

referred to 2 Robert’s on Wills, 22, 23 — Benson vs Whittam, 2 Sim. Rep. 493, (2 Con. Eng. Ch. Rep. 515.)

Badger, for the defendant,

submitted the case without argument.

Gaston, Judge.

It seems to us that the words of the will do not admit of the interpretation contended for by the piafntfffa. In regard to his grandson Thomas, the testator says he “ is to pay my executors five hundred dollars, in full of all advancements made to him or to his father.” How is it possible, to hold consistently with this language, that he is to pay five hundred dollars in addition to the advancements made to his father?

It seems to us equally clear, that parole evidence is not admissible to shew that the testator’s intent was at variance with his language. No rule of law is more clear than that a will is not to be expounded, much less contradicted, by parole evidence. It is incapable of being altered, detracted from, or added to, by parole. The case to which the counsel for the plaintiffs refers, (Benson vs. Whittam, 2 Simons 493, 2 Con. Eng. Ch. Rep. 515,) establishes no more than that parole evidence is admissible to ascertain whether the thing supposed to be given satisfies the description of it in the will. The object of such evidence is not to expound the will, but to apply its ascertained meaning to an external subject. This never can be done without evidence dehors the will. With regard to the evidence admissible in such cases, there are many nice distinctions, which it is wholly unnecessary now to consider. For, in the case before us, the testimony is offered to control the meaning of the will itself. We approve, therefore, entirely of the interlocutory decree, from which the appeal was taken.

Per Curiam. Judgment affirmed.