McAlister v. Gilmore, 36 N.C. 22, 1 Ired. Eq. 22 (1840)

June 1840 · Supreme Court of North Carolina

36 N.C. 22, 1 Ired. Eq. 22

CHARLES McALISTER, Adm’r. of ELIZABETH McALISTER vs. JOHN T. GILMORE.

Where a testator, after giving to his wife for life a certain plantation and negroes, directed in a subsequent clause that his estate should be kept together on his lands and plantation, (“ not left to his wife”) for a particular time, and that the profits which had accrued during that time, should be divided between his daughter E. A. and his Grandson J. T. G.; and then in several distinct sections proceeded to limit his estate, real and personal, in and among his family, upon the happening of certain contingencies; and then in another section devised and bequeathed as follows: “ I further will, that at the death of my wife all that estate left her during her natural life, both real and personal, be equally divided between my daughter E. A. and her children, and my grandson J. T. G., provided he shall have attained the age of twenty-one years, to them and their heirs forever,” it was held, upon its appearing that the daughter died without children in the life time of the tenant for life, but after the grandson had attained the age of twenty one years, that the remainder in the property given to the wife for life, was not affected by any clause of the will but the last, and that by that clause a moiety of the remainder in the slaves vested in interest in the daughter, either immediately upon the death of the testator, or, at least, upon the coming of age of the grandson, so that upon the death of the daughter, her husband was entitled to claim the same as her administrator.'

The bill charged that Joseph Thomas died some time in the year 1819, leaving a will, in which were contained the following clauses: “ 2nd, I give and bequeath to my beloved wife, Hannah Thomas, for and during the term of her natural life, the following property, viz. old Primus,” &c., also that part of my plantation that I bought of Mr. Beard, &c. “Item 8th. I will and desire that all my estate, both real personal, not already devised, shall be kept by my executors on the lands and plantation, (I mean that part not left to my wife) to tend and carry on” &c. I further will, that should my daughter Elizabeth McAlister breed and raise children, that the nett proceeds of my estate be equally divided between my grandson John T. Gilmore, my daughter Elizabeth McAlister and her children — my daughter Elizabeth McAlister and her children to receive their parts of the proceeds of the mills and lands annually, and that my grandson John T. Gilmore, receive his proportionable part of said proceeds when he shall have arrived to the age of twenty-one years, and not before. Item 9th. I will and desire, that should my grandson John T. Gilmore die before he attains to the age of twenty-one years, then I give and bequeath to my daughter Elizabeth McAlister all my'estate, both real and personal, to her and her heirs forever. Item 10th. I will further, that should my daughter Elizabeth McAlister die without children before my grandson John T. Gilmore arrives to the age of twenty one years, then I, give and bequeath to my grandson John T. Gilmore, all my estate, real and personal, which has not been already devised. • Should my grandson John T. Gilmore die after that he may have arrived to the age of twenty one years, without children begotten in wedlock, then, and in that case, I give and bequeath all that part of my estate left to him, to be equally divided between my brother William Thomas’s children, viz.” &c. “Item 11th. Should my grandson John T. Gilmore attain to the age of twenty-one years, and my daughter Elizabeth McAlister and her children or either of them be living at that period, then I will and desire that all my estate, both real and personal, be equally divided between my grandson John T. Gilmore, my daughter Elizabeth McAlister and her children, consisting of the following negroes and lands, viz:” &c. “Item 12th. I further will that at the death of my wife Hannah Thomas, that all that estate left her during her natural life both real and personal, be equally divided between my daughter Elizabeth McAlister and her children, and my John T. Gilmore, provided he shall have attained ^ a°e twenUr one years, to them and their heirs forever.” The bill then stated that John T. Gilmore arrived at the age 0f twenty-one years about the year 1825, and that Elizabeth McAlister died without children about the year 1830, and that the plaintiff, her husband, administered upon her estate. It was further stated that the executors had assented to the bequest to the widow for life, and that she had taken possession of the slaves and other property bequeathed to her; that she was still living, and had sold her interest in the said slaves to the defendant, John T. Gilmore, who was about to remove thence beyond the limits of the State. The plaintiff insisted, that under 'the will of Joseph Thomas, the remainder in the slaves bequeathed to the widow for life, vested in his intestate and the defendant,' and that in the events that had happened, he was entitled as the administrator of his wife, to one half the said slaves,-and prayed to have them secured to him. The defendant put in an answer which admitted the material facts stated in the bill, but insisted that he was solely entitled to the remainder in the slaves, after the life estate in his grandmother, the testator’s widow.

No counsel appeared for the plaintiff in this court.

Badger and W. H. Hayxoood for the defendants.

Daniel, Judge.

Upon this state of the case, there can be no doubt, and we So declare, that the remainder in the slaves and their increase, (which had been bequeathed to Hannah Thomas for lile,) vested in moities in Elizabeth McAlister and John T. Gilmore. Whether the said legacy vested in interest immediately on the death of the testator, or on John T. Gilmore’s arriving to the age of 21 years, it is now unnecessary to decide, as Gilmore arrived at 21 years of age, before the death of Elizabeth McAlister. But our attention has been called to the 8th, 9th, 10th and 11th sections of the will. On reading those sections, we have no hesitation in saying, that they relate entirely to other portions of the testator’s property, and do not touch or relate to the property given by the testator to his wife for life, and then in remainder (by the 12th clause) to Elizabeth Mc Alister and John T. Gilmore. By the 8th section, the property (not left to his wife) is to be kept together for a particular time: and then a direction how the profits which had accrued during that time should be divided between' Mrs. McAlister and John T. Gilmore. The 9th, 10th and 11th sections proceed to limit the said property, in and among his family, upon the happening of certain contingencies. The property referred to, in these sections, we .think, does not include the interest in remainder of the slaves left by the testator to his wife for life. This may be collected from what the testator has said in the 8th section, (“ not left to my wife”J as well as the express enumeration and designation of the property intended to be covered by the 11th section, at least by the schedule appended to the foot of that section; which schedule does not include the slaves given to his wife for life. We think that the 12th section is an independent clause, intended solely to dispose of the property given before to his wife for life. The plaintiff is entitled to have his moiety of the slaves secured, &c.

Per Curiam. Decree.accordingly.