Liverman v. Carter, 39 N.C. 59, 4 Ired. Eq. 59 (1845)

Dec. 1845 · Supreme Court of North Carolina

39 N.C. 59, 4 Ired. Eq. 59

BENJAMIN S. H. LIVERMAN vs. STEPHEN D. CARTER.

A testator bequeathed all his property to his brother A., except $100, which he “ willed to B. to be appropriated to the use of schooling and educating the said B., in that way and at that time that shall appear to be the most advantage to the said boy. I also leave the said $100 in the hands of the said A., to use the said money for the said purpose above written, if he should have it in his power, and, if not, to remain in common with the rest of the said property to A.” The testator lived till B., the boy, had become a man, married, and had a family. Held, that this was not an absolute legacy of $100 to B., but only for his schooling and education, and that, under the circumstances existing at the death of the testator, he had no right to claim it, but it belonged to A.

If a bequest be to, or in trust for a legatee, to put him out apprentice, or to advance him in any business or profession, it is an absolute bequest to such legatee ; except in the case, where the legacy is given over to another, in the event that the first object of the testator cannot be effected.

Appeal from the decree of the Court of Equity of Hyde County,- at the Fall Term, 1845, his’Honor Judge Battle presiding, dismissing the Bill.

The case appeared upon the pleadings, to be this : Moses Carter, of the County of Hyde, in the year 1835, made his will, and thereby gave to the defendant, his brother, all his real and personal estate, (amounting in value to about -$800, as the answer states,) “ with the exception of one hundred dollars, which I will to B. H. S. Liverman, (the plaintiff) to be appropriated to the use of schooling and educating the said Liverman, in that way and at that time, that shall appear to be of the most advantage to the said boy. I also leave the said hundred dollars in the hands of my brother, S. D. Carter, to use the said money for said purpose above written, if he should have it in his power, and, if not. to remain in common with the rest of the said property to the said S. D. Carter.” The testator did not die until the month of March in the year 1842, nearly seven years after the writing of his will, when the plaintiff was more than twenty-one years old, married, and had two children.

No counsel for the plaintiff:

Stanly, for the defendant.

Daniel, J.

The hundred dollars, as it seems to us, was to be applied by the defendant to the use of the schooling and education of the plaintiff, in that way and at that time, that should appear to be of most advantage to the said boy. And if the defendant should, not have it in his power to apply the fund to the schooling and education of the boy, then the same should sink in the general legacy. We do not think that the sum was to be raised for the general advancement in life of the plaintiff, and it does not appear that it ever was in the power of the defendant to apply it to the education of the plaintiff; nor is it now claimed by him for that purpose, but absolutely. The law is, if a bequest be to, or in trust lor, a legatee, to put him out apprentice, or prepare him lor Priests’ orders, or to advance him in any business or profession, it is an absolute bequest to such legatee. This is, however, rvhen the legacy is not given over to another, in the event the first object of the testator cannot be affected. Nevile v. Nevile, 2 Vern. 430. Barton v. Grant, 2 Vern. 254. Barton v. Cocke, 5 Ves. 451. Cope v. Wilmot, Amb. 704. Sherwood v. Ryme, 5 Ves. 667. In the case before us, the testator leaves the legacy in the hands of a trustee, to use it for schooling and educating the said boy, in that way 'and at that time, that shall appear to be of the most advantage to him, if the trustee should have it in his power; and, if not, the fund is to remain with the rest of the property, before given to the trustee, for the benefit of the trustee. The ■ plaintiff now insists, that he is absolute owner of the $ 100; and he demands it on that ground only. Suppose he was to get it and would never thereafter go to school, what would become of the words in the will, which give the said $100 to the defendant in that event ? Why, they would be nullified. That, it seems- to us, would be contrary to all the known rules of construction on wills. We think, that the testator intended the $100 for his brother, unless it should he wanting lor the schooling of the plaintiff We therefore think, that, the decree, dismissing the bill, was right, and that it must be affirmed; but without costs in this Court.

Per Curiam.

Decree accordingly.