Sherrill v. Echard, 29 N.C. 161, 7 Ired. 161 (1846)

Dec. 1846 · Supreme Court of North Carolina

29 N.C. 161, 7 Ired. 161

RUANNA SHERRILL vs. ELI ECHARD.

A testator devised to his wife during her life or widowhood all his estate' except what he should by his will otherwise dispose of. He then gives certain property to his children to he theirs at Ms de'eease'. Then comes this clause : “ Also, at the decease of my wife, I give to my son G. my man Stephen, and to my son L. my man Charles. Also I give and bequeath to my son L. W. all my lands &e.” (on which he had previously given his wife a life estate.) “Also unto my son L. W. I give my two boys Dick and David with their mother.” Held, that these negroes did not pass immediately to L. W. but only in remainder after the deatlror marriage of the widow.

Appeal from tbe Superior Court of Law of Catawba County, at tbe Spring Term, 1846, his Honor Judge Caldwell presiding.

This is an action of detinue for a negro man named David, whom both parties claim under the will of Alexander Sherrill, deceased. In it are the following dispositions :

“ I give and bequeath to my wife during her life or widowhood, all my estate, both real and personal, except what may be hereinafter otherwise disposed of, to have the disposal and control of the same, with all my debts and demands that may be owing me,, with all my household effects, furniture, farming utensils,-and stock. My will is, that my son Logan W. continue to live with, his mother, and attend to the management of the farm, and that he shall have, of the proceeds of the crop, 200 bushels of corn annually, if there be that much to spare over and above the support of the family and stock. Also, my will is that he shall have two beasts, a roan 'horse, and a gray filly, as his property at my decease. Unto my son Lawson, I give the piece of land lying on the west side of the branch that runs between my dwelling and bis, to have and to hold to him and bis heirs forever, after my decease.

“ And whatever I have given to any of my children, or may give them previous to my decease, I wish them to retain without any account thereof hereafter.

“Also at the decease of my wife, I give to my son Gabriel, my man Stephen, and to my son Lawson, my man Charles. Also I give and bequeath unto my son Logan W. all my lands, except what I have given above to Lawson, to have and to hold the same to the use of himself and his heirs forever ; and also unto my son Logan W» I give my two boys Dick and David with their mother Leah.

“ To my daughter Polly, I give #250 at my decease, which shall be laid out by my executor in a negro girl, which she shall have for herself and her heirs forever. My woman Charlotte, I allow my wife to dispose of as she may think proper. My wagon, I allow my sons Lawson and Logan W. to have. And further my will is, that the money belonging to me and all debts due the estate at the decease of my wife, she may dispose of amongst the children as she may think proper.”

The sole question made upon the trial was, whether ■ the slave David, was given by the will for life to the widow (who is the plaintiff) with a limitation over, upon her death to Logan W. Sherrill, or was given immediately and absolutely to the son, under whom the defendant claims. By consent of the parties a verdict was rendered for the plaintiff, subject to the opinion of the Court on that question ; it being agreed, that, if the Court should construe the will as giving the negro to the plaintiff for her life, there should be judgmént upon the verdict for her ; or otherwise, that the verdict should be set aside, and a nonsuit entered. The Court was of opinion against the plaintiff, and set aside the verdict, and gave judgment as upon a nonsuit, and the plaintiff appealed.

Alexander, J. II. Wheeler,'and J. II. Bryan, for the plaintiff.

Craig, for the defendant.

Ruffin, C. J.

This Court differs from his Honor upon the construction of the will. As the case comes here, it is to be assumed, that the plaintiff proved the assent of the executor, and, therefore, that the only enquiry is as to the construction of the will. We entertain a decided opinion, that the testator intended his wife to have the slave for life. By the first clause a general gift of every thing, real and personal, is made to her daring life or widowhood, with an exception of what may be otherwise disposed of in that instrument. Afterwards, the testator gives to Logan W. two horses — “ as his property at my .decease,” and to his son Lawson a part of his land then .occupied by the devisee, and adjoining his own residence,. “ to him and his heirs after my decease.” Then follows the clause in which David is disposed of, .-and which begins thus; “ At the decease of my wife I give to my son Gabriel, my man Stephen, and to Lawson my man Charles,. Also I give to my son Logan "W. all my land, except that given to Lawson ; and also my two boys Dick and David.” Upon this .clause by itsel'f, or rather construed together with the clause in favor of the wife in the beginning of -the will, (and without any regard to expressions in other parts of the instrument,) the son Logan W, could not take until the decease (or, at all events, the marriage) of •the wife. The grammatical construction establishes that position. For, after gifts, in the first part of the clause, .of two slaves to the sons of Gabriel and Lawson, limited .expressly to commence ‘'at the decease of my wife,” come, in the same clause, the two gifts to the son Logan W. the o,ne of land; which begins with the word, “ also,” that is, “ in like manner :” the other, of negroes Dick and David, which begins with the words, “and also” that is again, in like manner ;” which clearly connect those .gifts to this son with those to the two others, as all hawing the same beginning, namely, at the death of the wife. But this is rendered yet more certain by the connexion between the two gifts to Logan W. himself. That of the land is unquestionably in remainder after the death or marriage of the mother. F.or, independent of the term “ also,” which couples this gift with those to the tw.o ¿other sons, there is the decisiye circumstance, that the ¡land given to him includes the tract on which the testa-dor resided, which, as far as we can see, was all the testator had besides that given to Lawson ; and he had, in a previous part of his will, in a very particular manner directed, that this same son Logan W. should live with his mother on that farm, and manage it for her, receiving a compensation in part of the annual productions, when they might exceed the consumption of the mother’s fami]}\ Besides, unless the wife took that part of the land, she would get no real estate, notwithstanding the express gift of realty to her in the first elause : for, as has already been remarked, the testator had but the tract he and his son Lawson lived on, and the gift of the latter part was expressly to take effect at the testator’s death. It being clear, then, that the son Logan W. takes the land, only after the death of the mother, it follows, that the gift of the slaves to the same person, and connected with the gift ,o.f the land by the words “ and also,” is likewise in remainder after a previous life estate of the mother. Furthermore, this construction is enforced by the explicit manner, in which, when the testator means an immediate gift to his children, he so declares, in plain contrast to the gifts intended to take effect after the enjoyment of his wife. Thus, in the two clauses, preceding that on which this controversy arises, he gives Logan W. two horses, and Lawson land, each, “ at my decease •and in the clause next following it, the testator gives his daughter Polly, also, “ at my decease,” a sum to purchase a negro girl. Between those provisions, comes that under consideration, beginning with “ at my wife’s deceo.se,” and then giving a negro, each, to two sons ; “ also” the residue of his land to the son Logan W. “ and also,” Dick and David to the same son. Upon the whole will, therefore, the intention is quite clear, that the wife was to have an interest during life or widowhood, in the land and negroes given to the son Logan W. and the judgment must be reversed, and judgment given on the verdict for the plaintiff.

I

Pee Curiam. Judgment reversed and judgment for the plaintiff.