Alexander v. Alexander, 41 N.C. 229, 6 Ired. Eq. 229 (1849)

Aug. 1849 · Supreme Court of North Carolina

41 N.C. 229, 6 Ired. Eq. 229

ROBERT D. ALEXANDER, EX'R, &c. vs. JOSEPH N. ALEXANDER & AL

A testator, after making other devises and bequests, directed as follows . “It is my will that my land and negroes and all the icsidue of my property, both real and, personal, not heretofore expressly willed, be put to sale, at such credit as my executors may think proper ; out of the proceeds of which sale, it is my will that all my just debls be paid, and the balance or residue of said money, arising from such sale, after paying my just debts as aforesaid, I allow and it is my will shall be equally divided among’’ A. B. C.” 4"c. Held, that bonds and notes due to the testator, were not included in this clause, as not being the ordinary subjects of sale, and there being no general residuary clause, the amount of them went to the next of kin, as undisposed of.

Tire cases of Fraser v. Alexander, 2 Dev. Eq. 34S, and Bradly v. Jones, 2 Ire. Eq. 248, cited and approved.

' Cause removed from the Court of Equity of Mecklenburg County, at November Term 1847.

In the year 1S41, William Alexander, of Mecklenburg County, made his will, duly executed to pass real and personal property. The 5th clause isas follows; “It is my will that my land and negroes and all the residue of my property-, both real and personal, not heretofore expressly w’illed, be put to sale, at such credit as my executors may think proper: out of the proceeds of which sale, it is my will that all my just debts be paid, and the balance or residue of said money, arising from such sale, after paying my just debls as aforesaid, I allow, and it is my will, shall be equally divided between my three daughters, to wit, Sarah, Isabella and Abigail, and as my sons Joseph, John, William, Robert and James, have heretofore been provided for, as well as my daughters Jane, Elizabeth, Rebecca and Margaret, I have loft them nothing in this my last will and testament.” At the time of the testator’s death, besides lands and negroes, stock and other personal propert)', he had a number of promissory notes on various persons, amounting in the whole to twenty-eight hundred dollars. The bill is filed by the executor, to procure the opinion of the Court, as to the proper construction of the above devise. The defendants are the children, or such as represent them, and next of kin of the testator. The defendants Sarah Alexander, Calvin S. Wise, administrator of his wife Isabella Alexander, and James Alexander, administrator of his wife, Abigail Alexander, by their answer, claim the proceeds of the notes, as being included in the 6th item of the will, and passing under it, and the other defendants in the answer claim, that, as to the notes, the testator died intestate, and the proceeds of them must be divided among the next of kin of William B. Alexander, as in a case of intestacy.

Osborne and J. H. Wilson, for the plaintiffs.

Boyden, Alexander and Bynum, for the defendants.

Nash J.

The question submitted to us depends upon the proper construction of the Oth cla'use. The intention of the testator is always to be carried out, when it can be gathered from the will itself, but it must not rest in supposition or surmises. The testator must not only have a particular intent, but must express that intent in apt words, in words sufficient to show if. The terms “all the residue of my property both real and personal, not herein expressly willed,” &c., would very clearly embrace not only the notes in question, but also such money as he had in possession at the time of his death, and if the testator had devised the property itself, to the thi’ee legatees mentioned in that clause, no question could be made as to their right under the will to it. But lie has not so done, but gives to them the proceeds of the property. He directs that the property, embraced in that clause, should be put to sale at such credit, as my executors may think proper. What property is embraced in this clause'? Certainly not notes or money, but such property as was usually the subjéct of sale.

This construction is made evident by the direction to sell on a credit. If the notes were so sold, they-would produce but notes or bonds, or evidences oí debts. In the case Fraser v. Alexander, 2 Dev. Eq. 348, the will commenced, “as to what worldly substance, it has pleased God to bless me with, I dispose of in the following manner,” &c. .There it. was manifestly the intention of the testator not to die intestate, as to any of his property, yet the Court decided that ho liad not disposed of the whole. In the opinion delivered by the Chief Justice, it is declared,that the terms,“all my property,”could not embrace money or bonds, if the testator had left any, because the property thereby given is to be sold at public sale, which is altogether inapplicable to money, whether due or in hand. That case was followed by that of Bradly v. Jones, 2 Tre. Eq. 248, where the question we are now considering caree directly before the Court. The words of the will, there, were, “all the balance of my estate, that is not given to be sold, and the money arising from the sale,” &c. At the time of the death of the testatrix, she had in her possession specie and banknotes. The Court decided that she could not have meant the latter, but only such properly as was usually the subject of sale. It is said, however, in behalf of the three legatees mentioned in that clause, that it is evident, that the testator did not intend to die intestate as to any of his property; that he intended to dispose of the whole. This may beso, and very likely was, but, in seeking for his intention, we must net pass by the language he has used. If we do, we shall make the will, and not. expound it. The intention of the testator in this case, for that purpose, is not expressed as clearly and as strongly as in Bradly v. Jones. There, then, could be no doubt of such intention, and yet the Court decide he died intestate, as to a large and valuable portion of his estate mentioned in the will.

We are of opinion, that the notes on hand, at the death of the testator, did not pass under the 6th clause of the will, they not being mentioned in it specifically, and there being no general residuary clause, which would embrace them. Therefore they must be distributed, as in a case ofintestac}'.

The costs must be paid out of the proceeds of the notes.

Per Curiam.

Decree accordingly.