Owen v. Owen, 45 N.C. 121, 1 Busb. Eq. 121 (1852)

Dec. 1852 · Supreme Court of North Carolina

45 N.C. 121, 1 Busb. Eq. 121

WILLIAM OWEN, ADM’R. &c. against PETER OWEN & WIFE & OTHERS.

'Where a testator, by one clause of his will, directed that on the mamage of his widow, she should *e a child’s part of his personal property, and by another olause, directed that on her marriage or death, all the property he had given to her, with all his slaves, should be divided between his children: — Held that the latter clause did not defeat the clear and express provision made in the former, but referred to a division on her death, and the former to a division on her marriage; and that notwithstanding the verbal repugnancy, she was entitled, on her marriage, to a child’s part.

Where the bequest was to nine children, with a proviso that if any of them should die without lawful issue of their body them surviving, their part should be equally divided between the other children, and several of them died without issue : — Held that only the original shares passed by the will to the survivors, and that the portions accruing to them by the death of their brothers and sisters, became their absolute property, distributable on their death, among their next of kin.

Where a testator, in providing for his children, gave to one of his daughters enough of his estate to make her share equal to those of his other children, counting as a part of her share, what she might get from a grandfather, and the grandfather was living at the time fixed for distribution, and had given nothing to the daughter: — Held, that she was entitled to a full share of the father’s estate, without regard to what she might thereafter receive from the grandfather; and that the Court will not postpone the time for distribution, in order to ascertain what might be given by the grandfather.

(The cases of McKay v. Hendon, 3 Mur. 21; Guyther v. Taylor, 3 Ire. Eq., 323, cited and approved.)

Cause removed from the Court of Equity for Davidson County, at Spring Term, 1852.

The bill was filed by the plaintiff, as the administrator de bonis non, cum testamento annexo of Alfred Smith, to obtain a construction of his will. All the legatees who were living, and the representatives of those who were dead, were made parties. The clauses of the will upon which the difficulties arose, were as follows :

“ I leave in the hands and care of m37 beloved wife, during her natural life or widowhood, to be managed as she may think best for the use of her and m3r children, all the negroes which I now own or possess, to be kept by her at home as long as they conduct themselves in an orderly manner ; but should any of the negroes become unruly or disobedient, they are to be hired out by my executors, the proceeds to go into my estate.”

“ I give to my daughter Rachel, wife of Obadiah Goss, the sum of one hundred dollars, to be paid to her when there is sufficient money in the hands of my executors to pay this and all the legacies under this will. My will and desire is, that if my beloved wife should marry, that she is to have one third of my land during her natural life, and to have an equal or child’s part of all my personal property. I mean the one third of the tract of land on which I now live. ’ ’

“ I request and desire my wife, as my children who are now at home should marry or settle to themselves, to let each of them have the use and possession of one negro a piece, and such other property as they may need, and which she can spare, to enable them to commence housekeeping — the property taken by each child to be accounted for in a final settlement of my estate, at the death or marriage of my beloved wife.”

“ My will and desire is, that at the marriage or death of my beloved wife, all the property I have willed to her, (land excepted,) with all the negroes, be divided between ail my children who are now at home, and when they all get as much as I have given my daughter Rachel, counting what Leonard Goss has and may give h'er, then she, Rachel, shall share equal in the balance of my estate with all my children now at home; but should the portion which I have left Rachel, with what she may get from her grandfather, Leonard Goss, then she is to be made equal with my other daughters out of my estate.”

“ I will that my executors sell four hundred and fifty bushels of corn, one hundred bushels of wheat, and all the crop of cotton now growing, (except for family use,) either at public or private sale, together with all my outstanding notes ; after the payment of all my just debts and the legacies in this will, the balance, if any, to be divided between my wife and all my children, share and share alike. My will and desire is, that should any of my children now at home die without lawful issue of their body them surviving, their part to be equally divided between the balance of my children now at home with me.”

In other parts of his will, the testator gave to his wife, during her life or widowhood, several articles of personal property, to each of his sons, certain parcels of land, and to each of his four daughters, Ellen, Nancy, Mary Ann and Martha, seven hundred dollars. The bill stated, that besides his daughter Rachel, who was married and living with her husband separate from her father, he had four sons, to wit, James, Alfred, Burgess L. and Casper G. Smith, and four daughters, to wit, Ellen, Nancy, Mary Ann and Martha, all of whom were living at home with their father, both at the time when his will was made, and at his death ; that after, the death of the testator, his daughter Ellen had married the defendant Peter F. Owen, and then died, and her husband had administered upon her estate ; that four of the other children had died intestate, to wit, Burgess and Casper, upon whose estates the plaintiff had administered, and Alfred and Nancy, of whom the defendant, Peter F. Owen, had become administrator ; and that the widow, on the 3d day of September, 1851, intermarried with the defendant, Peter Owen. The bill then stated, that upon the fharriage of the testator’s widow, the plaintiff had sold the perishable property which had been given to her during her life or widowhood, and was ready to divide the proceeds, and also the negroes, among the legatees, but that difficulties had arisen in the construction of the will, upon which the plaintiff prayed the advice of the Court.

First, the widow insisted that she was entitled to a child’s part in the division ; and also that she was entitled, as one of the next of kin, to a share of the estates of tlie children who had died ; and particularly to the accrued shares of those who died after the first. The children on the other hand insisted, that by her marriage, she had forfeited all claim to any part of the personal estate.

Secondly, Rachel Goss insisted, that as her grandfather had given her nothing as yet, she was entitled to receive from the estate six hundred dollars to make her share equal with her four sisters, to whom legacies of seven hundred dollars each were given ; and that upon a proper contraction of the whole will, she was entitled to a share of the estate of all the children who had died ; and particularly to the accrued shares of those who died after the first. The other children contended that she was not entitled to any thing until it should be ascertained what she might receive from her grandfather, Leonard Goss ; and some of them contended that no division could take place at all, until that should be ascertained. The other children contended further, that she could not claim any part of the estates of the decedents, because she did not live at home.

The bill stated further that the defendant, Peter P. Owen, had sold one of the negroes for six hundred and twenty-five dollars, and had received the price, for which he ought to account.

The answers admitted the facts stated in the bill, set up their respective claims as therein set forth, and' submitted to-such decree as the Court might make. The answer of the defendant, Peter P. Owen, admitted that he had sold the slave as charged, said he had done it with the consent of all the family, and was ready and willing to account for the proceeds. The case was set for hearing upon the bill and answer, and transmitted to the Supreme Court.

No counsel for the plaintiff in this Court; and*

The case was submitted without argument by Miller and Bus-bee for the defendants.

Battle, J.,

after staling the case as above, proceeded : — We are called upon to decide upon the questions presented by the pleadings, without the aid of an argument. It is possible that, under such circumstances, we may have mistaken what the testator intended should be done with the personal estate in the events which have happened. The will is not very perspicuous, and some of the sections appear, at first view, to be contradictory to others. But applying to it those rules which have long been established for the construction of instruments of this kind, we think that we can approximate to, if we do not exactly fix upon, the wishes of the testator.

All admit that the fundamental rule in the construction of wills is to ascertain the intention of the maker ; and for that purpose, .all the parts of the will are to be taken in view, and effect is to be given as far as possible to every clause. What is wanting or obscure in one section or paragraph, is to be supplied by what is clearly expressed in another, so as to give to the whole instrument a uniform, consistent interpretation throughout all its parts. Thus, where the testator in the will before us directs, in one section, as follows, “ at the marriage or death of my wife all the property I have willed to her, with all the negroes, be divided between all my children who are now at home,” &c., without giving her any share thereof, it is evident that he was thinking only of a •division to be made at her death ; but that cannot defeat the clear and express provision made in a previous clause, that if she married, she was to have a child’s part. We hold, therefore, that she is entitled to a child’s part of the fund, after deducting six hundred dollars for Rachel, as hereinafter expressed; that is, to one tenth part thereof, there having been nine children, including Rachel Goss, who were living at the testator’s death. We can see no pretence for her claim to the original shares which, upon the death of some of the children who lived at home, went to the survivors ; but she is clearly entitled as one of the next of kin of her deceased children, to a share of the accrued shares of those who died after the first—McKay v. Hendon, 3 Mur. Rep. 21; 1 Jarman on Wills, 620, and the cases there cited.

There is more difficulty in deciding upon the claim of Rachel Goss. The testator seemed to think that her grandfather would provide for her to some extent; and he intended that what he himself might give her should depend upon that provision. But he clearly fixed upon an event which was to be the period when the division between his widow and the children should take place ; and we cannot find a sufficient indication in the will, that he wished such division to be postponed for a longer period, to await the uncertainty of the grandfather’s providing for Rachel. He doubtless drought the old man w.ould die and leave something to his grandaughtcr, before his wife should either marry or die. In this he was mistaken, and he has not provided against the mis* take. We hofd, therefore, that the marriage of the widow was the time for the division, and that Rachel, not having received any thing from her grandfather, is entitled in the first place to six hundred dolíais, in order to make her equal with her four sisters, and then she is entitled to a child’s share of the whole remaining fund. She was not living at home, and cannot claim any of the original shares of the deceased children j but she is entitled, as one of the next of kin of her deceased brothers and sisters, to a share of the accrued shares of those Who died after the first.

All the other children who are living, and the representatives of those who are dead, are entitled each to one tenth part of the whole fund, after deducting therefrom the six hundred dollars for Rachel. That sum is to be deducted before the division in order to effectuate the manifest intention of the testator, to make the division of his personal property equal among his widow and all liis children, in the events which have occurred — the seven hundred dollars given to each of his daughters, being in lieu of a provision in land, such as he had made to his sons.

All the children, other than Rachel, who are living, are entitled to the original shares of those who are dead, and to their respective parts of the accrued shares as next of kin, as specified above, in relation to the widow and Rachel.

In this opinion we have treated all the legacies as vested, as the parties seem to have done. We think, that upon a proper construction of the whole will, they aib so vested, though the division is directed to be made at the marriage of the widow. The words when, if or at, applied to a legacy generally, makes it contingent, “unless there be some other expression to explain them, or some provision in the context to control them.” We think there are many expressions in this will to control the meaning of the word at. The property is given to the wife during her life or widowhood. At her death or marriage, it was to be divided between her and her children. The shares of the children were, therefore, vested remainders, to be enjoyed in possession upon either of the events which might determine the particular estate. See Guyther v. Taylor, 3 Ire. Eq. Rep. 323.

' It must be referred to the clerk to take all proper accounts, &c. In the final division which is to be made, according to the principles expressed in this opinion, the. defendant, Peter F. Owen, is to be charged with the price of'the negro sold by him, with interest thereon from the time he received the money. All the costs will be paid out of the fund.

Per Curiam. Decree accordingly.