Gregory v. Beasley, 36 N.C. 25, 1 Ired. Eq. 25 (1840)

June 1840 · Supreme Court of North Carolina

36 N.C. 25, 1 Ired. Eq. 25

MACKEY GREGORY vs. NATHANIEL J. BEASLEY, Adm’r. of MARY L. GREGORY et al.

Where a testator bequeathed all his personal property to his four children, A., B., C. and D., to be equally divided between them, when his son A. arrived to the age of twenty-one years, “ and if one or two or three should die under age, or without lawful issue, for all the property to go to the surviving ones forever;” it was held, that upon the death of D., a daughter, before her arrival at full age, but after A. had attained twenty-one years old, her share would go over to her brothers then living; and that neither the child of a sister who had died after attaining full age, nor the next of kin of the testator, was entitled to any part of it.

Samuel Gregory died sometime in the year 1824, leaving a will, in which he bequeathed as follotvs:-

« j g-jve unt0 my four children, Maria, Frederick, Mackey and Mary Lucilla Gregory, all my property, to be equally divided when my son, Frederick Gregory, arrives to the age 0f twenty-one years old. And if one, or two, or three should die under age, or without lawful issue, for all the property to go to the surviving ones forever.”

Frederick Gregory arrived at full age in March, 1835; soon after which, upon a petition filed for that purpose, the slaves belonging to the testator’s estate were divided into four lots or shares, and the report thereof was confirmed at the February Term, 1836, of Chowan County Court. Maria married the defendant, Beasley; arrived to the age of twenty-one years; had issue a daughter, now alive, and died in January, 1834. Mary Lucilla Gregory died under age, and without issue, -in May, 1838. The widow of the testator married, and had issue a son, now living. Mackey Gregory, the brother of the intestate, Mary Lucilla, filed this bill against her administrator, and also against the representative of Maria Beasly, the next of kin of the said Mary Lucilla and Frederick Gregory; in which he claimed to be entitled to one half of the share of the slaves allotted to the said Mary Lucilla, admitting that his brother, Frederick, was entitled to the other half. Answers were put in by the defendants, admitting the above facts to be true, and insisting upon the interests of the parties respectively.

The cause was submitted, without argument, by

M. Haughton for the plaintiff, and

A. Moore for the defendants.

Daniel, Judge,

after stating the case as above, proceeded as follows: There are three sets of claimants upon the share that fell to the intestate, Mary Lucilla Gregory. First, the two surviving brothers. Secondly, the two surviving brothers and the defendant, the administrator of the deceased sister, Maria. Thirdly, the next of kin of Mary Lucilla, under the statute of distributions.

The executory devise being good in law, the next of kin, 'as such,- have, we think, no right to any of the share. It is very probable that the testator, if he could have foreseen the events which have happened, might have limited a part of this fund to the child of Maria. But this Court can only conJ strue wills; it is not allowed to make them for testators. The testator has said, that if one, or two, or three of his children should die under age, or without issue, “ for all the property to go to the surviving ones forever.” The meaning is, that all the property, or original share of one, two, or three of his children, dying before coming to age, or without issue, should go over to the child or children then surviving. The expression “ surviving ones,” shews this to be his meaning.

We do not subscribe to the argument, made by the defendants’ counsel, that the testator meant, if either one, two, or three of his children should die before the time of division, viz: before Frederick arrived to the age of 21 years, then only the interest of the person so dying, should go over to the survivors; but not if any died after the time ofidivision. We can find nothing in the will, to tie up the contingency only to the time before'the division. We think that the testator meant, that the property which he gave to each of his children, should be divested, and go over to the survivors, if any of the four children should die without issue, before they arrived at the age of 21 years. This opinion is, perhaps, fortified by the fact, that the testator must have known, that when Frederick should come to the age of twenty-one years, his daughter, Mary Lucilla, would only be twelve years old. Yet he says, (in the clause,) that if either die under age, and without issue, the property is to go to thp survivors; which tends to shew,, that he did not mean to limit the contingency up to the time of the division only, but afterwards, also, if the event should occur. Mackey and Frederick, being the only children surviving at the death of their sister, Mary Lucilla, are entitled to the said share in moieties.

Per Curiam. Decree accordingly.