Nelson v. Moore, 36 N.C. 31, 1 Ired. Eq. 31 (1840)

June 1840 · Supreme Court of North Carolina

36 N.C. 31, 1 Ired. Eq. 31

JAMES NELSON, Ex’r. of ANNIS MOORE, vs. JNO. MOORE et al.

"Where a testatrix bequeathed “ that all the balance of my property shall be divided between L. G., A. N., M. F., and A. and I. A. B. to draw-one share; also M, and N. H. to draw one share,” it was held, that the testatrix intended the residuum of her property should be divided into five equal shares, of which one share was to go to the two B’s, and one other share to the two H’s; and the three remaining shares to the three other named legatees: and it was further held, that I. A. B., one of the legatees, having died before the testatrix, his moiety of a share lapsed and went to the next of kin of the testatrix; because all the legatees, whether taking whole shares or moieties of shares, would have been, if they had lived, not joint tenants, but tenants in common of the fund.

The bill stated that Annis Moore, being possessed of a considerable personal estate, died, some time in the year 1834, after having made a will, in which she gave divers specific legacies, and then bequeathed as follows:

“ It is also my will and desire, that the balance of my property shall be divided between Lucinda Godley, Annis Nelson, Marina Forest and Annis and John Alexander Brinkley, to draw one share; also Marina and Nancy Hardie to draw one share.”

The bill then stated that Annis Nelson died before the testatrix, leaving a son by the name of William M. Nelson, who was entitled to her share, under the said residuary clause; and that John Alexander Brinkley had also died before the testatrix, whereby the legacy to him became lapsed. The bill was bled by the plaintiff, as the executor of the said Annis Moore, against her légatees and next of kin, and prayed the advice of the Court as to how he should pay over the residue in his hands, alleging that the guardian of Marina and Nancy Hardie, who were infants, insisted that the said residue should be divided into two equal shares, of which his wards were entitled to one, and the other legatees and next of kin to the other; while the latter contended that it should be divided into five equal shares, of which Lucinda Godley was entitled to one share, Marina Forest to one share, William M. Nelson, son of Annis Nelson, to one share, Annis Brinkley to one moiety of one share, and the next of kin of the testatrix to the other moiety of that share, and Marina and Nancy Hardie were eniilled to one share.

The defendants, in their answers, admitted the facts stated in the bill, and contended for the construction most favorable to their respective interests.

No counsel appeared for the plaintiff in this Court

The Attorney General for the defendants.

Daniel, Judge.

The Court is called upon to put a construction upon the residuary clause in the will of Annis Moore; and also to decide upon the rights of the parties, according to the facts admitted in the pleadings. We are of the opinion that, by a fair interpretation of the said clause, as stated in the bill and admitted in the answers, the testatrix intended the residuum of her property should be divided into Jive equal shares. One share was to go to (he two Brinkleys; and one other share to the two Hardies; and the three other shares to the three other named legatees, viz: Lucinda Godley, Annis Nelson and Marina Forest. This construction we think necessarily follows, when we see the word “and” the first copulative conjunction, placed immediately preceding the Christian names of the two Brinkleys; and the words “ to draw one share, placed immediately following the names of the said two Brinkleys. Then comes the bequest to the two Hardies, in these words, “ also Marina and Nancy Hardie to draw one share,”

The testatrix having directed “ shares” of this fund to be allotted to some of the said residuary legatees, the whole fund must necessarily be supposed to have been intended by the testatrix to be first equally divided into five shares; and then, two of these five shares to be again divided between the Brinkleys and Hardies.- This being so, made the legatees take in distinet shares. Mrs. Nelson, one of the legatees, having died before her mother, the testatrix, and having left- a son, William Nelson, one share of the five will belong to him, by virtue of the act of Assembly* 1 Rev. Stat. ch. 122, sec. 15, John A. Brinkley, one of the two Brinkleys who was to have one share, having died in the life time of the testatrix, the question now is, whether his moiety of one share survives to the other legatees, or whether it lapses and goes to the next of kin of the testatrix? We are of the opinion that all the residuary legatees, whether taking whole shares, or moiety of shares, would have been, if they had lived, not joint tenants, but tenants in common of the fund; therefore, the moiety of the one share bequeathed to the said John Alexander Brinkley, lapsed, and now belongs to the next of kin of the testatrix.

Per Curiam. Decree' accordingly.