Bradley v. Jones, 37 N.C. 245, 2 Ired. Eq. 245 (1842)

June 1842 · Supreme Court of North Carolina

37 N.C. 245, 2 Ired. Eq. 245

WILLIAM D. BRADLEY, Ex’or &c. vs. SUGARS JONES and others.

A. devised as follows: “I lend to my daughter P. J. one negro girl named Mary, her life, and after her death, to he equally divided among the heirs of her body forever.” Held, that these words, if applied to real estate, would have created an estate tail at common law, and that where words in a will would create an estate tail in land at common law, they carry the absolute estate in a bequest of chattels.

A bequest of a “ nogro woman and all her children” does not include the grand-children of the woman, born in the lifetime of the testatrix.

A residuary clause in a will of “ All the balance of my estate, that is not given, to be sold; and the money arising from the sale I give to A. B.” &e. does not include the specie and bank notes in possession of the testator at the time of his death.

The case of Ham v Ham, 1 Dev. & Bat. Eq. 598, cited and approved.

This was an appeal from certain interlocutory decrees made by his Honor Judge Settle, at the Spring Term, 1842, of Northampton Court of Equity.

The bill was filed, at Spring Term, 1842, of Northampton Court of Equity, by William D. Bradley, Executor of Mary Jones, against Sugars Jones and others, and its allegations (so far as regards the questions brought to the Supreme Court) were, that the said Mary Jones departed this life sometime in the year 1842, after having duly made and published her last will and testament, which was proved in Northampton County Court, at March Term, 1842, by which the plaintiff was appointed her executor, and that he qualified as such — and a copy of the will was annexed to and prayed to be taken as a part of the bill — that in and by the said will the testatrix bequeathed as follows: “ I give unto my son Willie Jones’ children one sixth share in my negro woman Mary and all of her children. I give unto my daughter Polly Carpenter one sixth share in my negro woman Mary and all her children.” “I give unto my son Richard Jones and my son Allen Jones and my son Sugars Jones anc} my son 'William P. Jones one sixth share a piece in Mary and and her children” — that the said negro woman Mary had been bequeathed to the said testatrix by the will of her father, George Norwood, in the following words, to wit, “ I lend to my daughter Mary Jones negro girl Mary her life, after her death, to be equally divided among the heirs of her body forever” — that in the will of the said testatrix there was also the following clause: “ all the balance of my estate, that is not given, to be sold, and the money arising from the sales I give unto my son Sugars Jones one fifth part of the same, and all the balance I give unto my son William P. Jones” — that there was found among the effects of the said testatrix specie and bank notes, amounting to about six hundred and forty dollars, which were claimed by the said residuary legatees, and their claim was opposed by the distrib-utees of the said Mary Jones, alleging that as to this fund she had died intestate. It was also alleged that the slave Mary mentioned in the will of Mary Jones had a grandchild. And the plaintiff as executor, prayed that, as there were conflicting claims under these two wills, and he was ignorant as to the proper construction to be put on them, the court would advise how he should settle with the several claimants, and the proper parties were made.

The defendants answered and admitted all the material facts stated in the plaintiff’s bill, and submitted to any decree the court might make in the premises.

The case coming on to be heard upon the bill, answers, and the wills referred to, his Honor declared that, by the will of George Norwood, the testatrix, Mary Jones, was entitled in absolute estate to the slave Mary and her children mentioned in the pleadings, and that said slaves are disposed- of by the will of the said Mary — that the slave the grand-child of the said slave Mary did not pass by the will of the said testatrix, under tire clause bequeathing the said slave Mary and her children, but was disposed of by the residuary clause of the said will — and that, by the said residuary clause, all the property of the said testatrix, (including the specie and bank notes,) uot specifically bequeathed by the said will, passed to the defendants Sugars Jones and William P. Jones; and a decree was made accordingly.

One of the defendants prayed an appeal from so much1 of the decree as declared that the testatrix Mary Jones, under the will of her father, took an absolute estate in the slaye Mary. Others of the defendants prayed an appeal from so much of the decree, as declares that the grand-child of the slave Mary did. not pass under the bequest of Mary and her children — and also from so much oí the decree as declared that the specie and bank notes, in possession of the testatrix at the time of her death, passed to Sugars Jones and William P. Jones, as residuary legatees; which appeals were allowed by the court.

No counsel lor the plaintiff.

B. F. Moore for the defendants.

Daniel,

J. On this appeal, there are three questions fot this court to determine. First, what estate or interest did Polly Jones take, under this clause in her father, George Norwood’s, will, “I lend to my daughter Polly Jones, one negro girl named Mary for her life; after her death, to be equally divided among the heirs of her body forever.” . The difference between this case and Ham v Ham, 1 Dev. & Bat. Eq. 598, consists in the words “ equally to be divided among the heirs of her body forever.” In Ham v Ham, the gift was to her daughter for life, then to her lawful heirs. In the case before us, if it had been a devise of land, we think that Polly Jones would have taken an estate tail at the common law, and wherever words in a will create an estate tail in lands, they will, in a bequest of chattels, carry the absolute estate. That the words made use of in Norwood’s will would create an estate tail in a devise of land, we think is established by the two cases of Jesson v Wright, 2 Bligh. 2; and Doe v Harvey, 4 Barn. & Cress. 610. Hays on real estate, 100 to 115. We therefore approve of this part of the decree. Secondhj, Mary Jones, by her last will, gave her " negrowoman Mary and all her children” to certain legatees. The slave Mary had a grand-child, born in the lifetime of the testatrix. Did the grand-child of Mary pass to the said legatees, under the words “ and all her children?” A devise or bequest to the children oí a man do not extend to his grand-children; grand-children never take, when there are children to answer the description, 2 Powell on Dev. 298, (Jar. Ed.) and the cases there cited. If, therefore, when the persons to take are described as « children,” and under that description a grand-child cannot take, if there be children, so we think that where the property bequeathed is described in the will “ to be the children of my negro woman Mary,” the grand-child will not pass to the said legatees. The grand-child of the slave Mary is therefore to be sold under the residuary clause, and the money arising from the sale, is to go to William Jones and Sugars Jones, in the proportions declared in the will. We approve therefore of this part of the decree. Thirdly, we do not agree to so much of the decree as declares William Jones and Sugars Jones to be the general residuary legatees of the testatrix, Mary Jones. The words of the will are as follows: “All the balance of my estate that is not given, to be sold. And the money arising from the sale I give to ir.y son Sugars Jones, one fifth, and all the balance I give to my son William Jones.” William and Sugars are to have only the money arising from the proceeds of the sale, and not all her money. We think that the testatrix could not have intended that her specie and Bank notes on hand at her death should be exposed to sale. She must necessarily have meant, by the above words, such property as was usually the subject of sale. William and Sugars are, therefore, only particular residuary legatees of that money, which arose from the sales of all the saleable property, not disposed of by the will. The money on hand at the testatrix’s death (viz- specie and bank notes) is undisposed of by the will; and it will be distributed among the next of kin. So much of the decree, therefore, as declared, that the money on hand belonged to Sugars Jones and William Jones, ought to be corrected according to this opinion. The costs of the cause in this-court are to be paid by the plaintiff out of the funds in his hands. No Solicitor’s fee to be taxed.

Per Curiam, Decree accordingly.