Love v. Love, 40 N.C. 201, 5 Ired. Eq. 201 (1848)

June 1848 · Supreme Court of North Carolina

40 N.C. 201, 5 Ired. Eq. 201

ROBERT LOVE vs. JOHN C. LOVE & AL.

Is a will the grammatical construction must prevail, unless a contrary intent plainly appears.

A bequest of a negro woman and her increase, without any explanatory words, will not entitle the legatee to a child of the woman, born before tha testator’s death. But if there be any expression in the will, shewing an intention on the part of the testator, that the child, so born, shall be included in the gift of the mother, then the legatee shall take it: as where, in ouch a bequest, one of the children of the mother is expressly excepted, this shews the intention of the testator that the legatee should take all tha children, except the one excepted.

The cases of Jones v. Posten, 1 Ired. 171, and Stultz v. Kizer, 2 Ire. Eq. 538, cited and approved.

This case came on to be heard upon exceptions to the master’s report, which exceptions sre sufficiently set forth in the opinion of the Court.

The bill was filed in the Court of Equity for the County of Caswell by Robert Love, Marmaduke Kimbi’ough and his wife Sarah, Benjamin D. Purley and his wife Margaret, Samuel Love and his wife Mary and Martha Love by her father and next friend, Samuel Love, against John. C. Love, executor of John Love, deceased, and John Me* Kissack and his wife Elizabeth Elmira, in which the plaintiff claimed as legatee under the will of the said John Love and prayed for an account from the executor and the payment of their respective legacies. The defendant John C. Love filed his answer, and thereupon an order was made that the master should take an account between the parties, which was accordingly done; and upon the coming in of his report, exceptions thereto were filed by the plaintiff and the cause was transmitted to this Court. The case made by the bill and answer, so far as is necessary to a proper understanding of the report and the exceptions thereto, is as follows. John Love died in the year 1844 having' previously made and published his will, wherein, among other bequests, he bequeathed as follows, 6th I give to my daughter Elizabeth Elmira McKissack a negro girl named Beck, to her and her heirs.

7th, I give to my son- John C. Love a woman named Lyn and all her increase except a girl named Thene.

8th, It is my will that if I do not sell Thene my son John C. Love have her to him and to his heirs, &c. My will is that my stock of horses, half of my cows, wagon, sheep and hogs be sold, my just debts paid out of the said money, and the balance to be divided between my four ®hildern,namely,Robert, Sarah, Mary and Elizabeth ; all the balance of my estate, viz. stock that is not mentioned above, also my household and kitchen furniture I give to my son John C. Love and his heirs, &c.” John C. Love was appointed executor, and, after probate of the will, was duly qualified and took upon himself the burden of its administration. The bill charged that the girl Beck given to Elizabeth E. McKissack had a child named Sally,, born in the testator’s life time, which did not pass under the will and for which the executor was bound to account, and had failed to do so ; that the testator left, as- part of his personal’ estate, a number of horses,, stock of cattle, hogs and sheep, an ox cart, a quantity of provisions, and many articles raised on the farm, for which the executor had also failed to account; and that he had likewise neglected and refused to account for the children of Lyn born in the testator’s life time-, as it was alleged that he was bound to do. The executor in his answer stated, that he was, and had at all times been,.ready to account with the plaintiff for every part of his testator’s estate to which they were entitled; that he had sold' the horses and half the cattle and other stock,and returned an account of the rules thereof to the proper Court; that the ox cart was his own property, that half the cattle and other live stock was given him by the will, and that he claimed all the crop and provisions on hand at the testator’s death, by virtue of a contract made with the testator in his hie time, to the effect that if he would live with the testator and manage his business, he, the defendant, should have all that he could make, after supporting the family, and that he had fully complied with said contract in every particular. He admitted that he had children of Lyn, born before the death of the testator, in his possession, claiming them as his own, under a bequest in his testator’s will.and he utterly denied the right of the plaintiff to them or any part of them. As to the child Sally, alleged to have been born of the woman Beck before the death of the testator, he answered “ that he had understood and had no reason to disbelieve, though he did not know of his own knowledge and therefore did not admit, that negro woman Beck, given in the will to Elizabeth McKissack.had a child named Sally,born before the death of the testator; and he further stated, that the said Elizabeth had been living in Tennessee for a great number of yeajs, claiming and using the negroes as her own, and he had been advised, that, by the laws of that State, he could not recover, if there were any child of the said Beck; and he stated further, that he believed, that, if he had attempted to recover, it would have been attended with great expense to the estate — probably more than the value of the negro, if he had been successful.” The report of the master exhibited a statement of what was in the hands of the executor after charging him with all which the master thought he ought to be charged with, and allowing all proper disbursements ; and it also exhibited the testimony, upon which the charges were made and the disbursements allowed, among which testimony was a copy of the account of sales returned to the County Court by tho executor

The exceptions filed by the plaintiff to the report were as follows:—

1. The master has submitted no evidence of the amount of the estate, which came to the defendant, John C Love’s hands, nor does he show of what sums, how raised or from what sources,he made the aggregate amount with which he has charged the said defendant.

3.The master has credited the defendant with 1539 paid attorneys, without evidence that the service of counsel was required in matters pertinent and proper for the estate.

3. The master has failed to charge defendant with the stock of provisions on hand at testator’s death, or with any of the proceeds of articles raised on the farm.

4. The defendant is not charged with the horses on hand, and permits the defendant to retain them as his own ; that he has omitted to charge the defendant with half of all the stock, other than cows.

5. That the master has failed to charge the defendant with the children of the woman Lyn, and has taken upon himself to construe the will, and gives to defendant all Lyn’s children, and half of all the stock, other than cows, which construction is erroneous and against law.

6. That defendant is not charged with an ox cart.

7. That the report is not sustained by the evidence, and is against the testimony in the cause.

8. The defendant is not charged with the child of woman Beck, which was born before the making of the will.

Morehectd and Norwood, for the plaintiff.

Kerr and E. G. Reade, for the defendants.

Battle, J.

We have examined the testimony taken by the master, and must over-rule the first exception, because the plaintiffs have produced no evidence to show that the amount of the estate, which came to the hands of the executor, was different from what it appeared to be from his answer and account of sales. The master was therefore justified in stating that to be the true amount.

The 2nd exception we must over-rule, also, because the plaintiff has failed to show that the charges were improper or unreasonable.

The 3d exception is over-ruled, because the testimony satisfies us that the executor was entitled to all the articles mentioned in the exception, under a contract made with his testator in his life-time, and which was fully performed on his part by the executor.

The 4th exception is also over-ruled, because it appears from the testimony that the testator had, at the time of his death, but two horses, and they were sold as a part of his estate by the executor; as were also one half of the cows and other stock. The other half, the executor is entitled to upon a proper construction of the will. That is certainly the grammatical construction, and according to the case of Jones v. Posten, 1 Ired. Rep. 171, it must prevail, unless a contrary intent plainly appears, which is not the case here. Besides this, it appears from the testimony that the defendant was entitled to one half of the stock, other than horses under contract with the testator.

; The 5th exception cannot be sustained and must also be over-ruled. It is well settled that a bequest of a negro woman and her increase, without any explanatory words, will not entitle the legatee to a child of the woman, born before the testator’s death. But if there be any expression in the will, showing an intention on the part of the testator, that the child, so born, shall be included in the gift of the mother then the legatee shall take it. Stultz v. Kiser, 2 Ired. Eq. Rep. 538. Here the exception of the girl Thene from the bequest of the woman Lyn and all her increase, shows plainly the intention of the testator, that the legates should take all the children, which Lyn then had, except Thene. And this intention is still more plainly manifested by the testator’s giving, in a subsequent clause of his will, the girl Thene to the same legatee, in the event of his failing to sell her. The construction placed upon the will by the master was therefore right in point of law and must be sustained.

The 6th exception must be over-ruled, because the ox cart, to which it relates, is proven to have been bought by the executor himself and was no part of the testator’s estate.

The 7th exception is over-ruled because it is too general and indefinite.

The 8th exception has raised rather more difficulty than we have found with the others. The allegation in the bill, that the woman Beck, given to Elizabeth McKissack, had a child born in the testator’s life time, is neither expressly admitted nor denied in the answer, and there is no testimony taken upon that point. We cannot, therefore, declare the fact, that there was such a child born as above stated, yet we think that it is manifest from the answer, that the executor believes the fact to be so, and we suspect that it is so. Under these circumstances, the plaintiff may, if he choose, have it referred to the master to enquire whether the woman Beck had a child named Sally born before the testator’s death and living at the time of his death ; and if so wffiat was her value at that time ; and whether the share < f the estate, to which Elizabeth McKissack is entitled under the will, be sufficient to answer for the value of Sally, or of any and what part of such value.

Per Curiam.

Decree accordingly.