Fulford v. Hancock, 45 N.C. 55, 1 Busb. Eq. 55 (1852)

Dec. 1852 · Supreme Court of North Carolina

45 N.C. 55, 1 Busb. Eq. 55

THOMAS FULFORD AND OTHERS against WILLIAM HANCOCK, ADM’R. OF SABRA SHACKLEFORD.

Where the testator bequeathed the residue of his estate to be divided between a son and two daughters, the sou to have half a part, and the daughters the remainder: — Held, that the word “ part” means share, and the son therefore takes one sixth.

Cause removed from the Court of Equity for Carteret county, at Spring Term, 1852.

Stephen Fulford died in the year 1824, having previously made and published his last will and testament, in which he devised as follows:

“1 will and bequeath unto my beloved wife, Louisa, the house “ and plantation during her widowhood, and after her death, to “ my son, Thomas Fulford, and all the back lands included. Al- “ so my will and desire is, that my wife, Louisa, is to have Quake “and Perry, also Peg and her children, during widowhood.; “ and after her death, my will is, that my son, Thomas Fulford, “ is to have my chest, buffet and desk, and a mahogany table, “ also half a dozen of flat back chairs; the remainder of my “ furniture and all property to be divided betwixt my two daugh- “ ters and son, Sabra Shackleford, Abigail Simpson, her heirs or “ assigns ; my son, Thomas Fulford, to have half a part, and “my two daughters above mentioned, the remainder.”

The will was duly proved by the plaintiff, Thomas Fulford, the executor therein appointed, who qualified as such, and assented to the legacies therein given. Louisa Fulford, the widow, died in the year 1850, as also did Sabra Shackleford, the intestate of the defendant. The bill was filed by Thomas Fulford and Ziba Simpson and his wife Abigail, against the defendant, as the administrator of Sabra Shackleford, alleging that the plaintiff, Thomas, had purchased the interest of the other plaintiffs in a part of the slaves and their increase, given to the said Louisa for life, and praying for a partition of said slaves between himself and the defendant, as the administrator of the said Sabra. In said partition, he claimed to have three fourths of said slaves assigned to him, to wit, one half in his own right, and one fourth by virtue of the assignment from Simpson and his wife ; and he alleged that upon a petition in tire County Court for partition of a portion of the slaves, given by the same clause of the will of his testator, the slaves were divided between himself and his two sisters in those proportions. The defendant filed his answer, in which he admitted all the material facts stated in the bill, but contended that upon a proper construction of the will of Stephen Fulford, the plaintiff, Thomas, was entitled to only one sixth or two twelfths of the said slaves in his own right, and five twelfths under his purchase from Simpson ; and that he was entitled in right of his intestate to tire remaining five twelfths ; and he insisted that the construction must be made upoir the will itself, and not by any thing which had been done by the parties.

The cause was set for hearing, and by consent, transmitted to the Supreme Court.

J. W., with whom was J H. Bryan, for the plaintiffs,

Donnell, for the defendant.

Battle, J.,

after stating the case as above, proceeded : — The only difficulty between the parties arises from that clause of the will which gives the “ remainder of the furniture and all property ’ ’ to be divided between the two daughters and son, the son C( to have half a part,” and the two daughters the ecremainder.” The counsel for the plaintiffs contends that the obvious meaning is to give the son one half of the property there referred to, leaving the other half to be equally divided between the two sisters. He contends further, that such meaning is made more manifest by the intent of the testator, apparent from other parts of the will, to give the son much the larger portion of the property ; and also by the parties themselves having put that construction upon the clause, when they divided the other slaves.

The defendant’s counsel objects to this construction, and contends that the testator, having in the previous part of his will given his son the greater part of his estate, intended that his daughters should have larger shares in the residue; and to that end declares that his son shall have^half a part; .that is, half of a third part, or one-sixth part of the said residue, and his two daughters shall taire the remainder. He insists, also, that the construction must be made upon the will itself, and cannot be affected by any thing done by the parties. We agree with the defendant’s counsel, that the acts of the parties in relation to the other slaves, can have no effect in determining the construction of the will. The intention of the testator must be ascertained by what he has said in his will, and not by what other persons may have done after his death. The aid which each party seeks to derive from the other provisions in the will, seems to be about equal. It is almost, if not quite, as probable that the testator intended to malee the portions o'f his daughters more nearly equal to that of his son, as that he intended to continue his preference for his son, in this disposition of the residue. We are then driven to look to the clause itself for its interpretation, and from that, we think, the son was intended to taire only one-sixth part of the residue. The word “ part,” in its connection, evidently means share. It is often so used in common parlance, and that is one of the meanings given to it in dictionaries of high authority. Now substitute “share” for “part,” and the intent seems plain. The property is to be divided between the two daughters and son. If nothing more is said, the part or share of each is evidently one-third of the whole. The son is to have half a share. A share is a third of the whole: half a share must therefore be half of one-third — that is, one-sixth part of the whole. The testator does not then say that the daughters are to have whole shares, for that would have left a small portion undisposed of; but he'gives them the remainder — all that his son did not take. He thus, too, obviates the difficulty that might otherwise have arisen upon the supposition that the son was to have half as much as each of the daughters. The decree must be for a partition according to the rule above expressed. The costs must be paid out of the fund.

Per Curiam. Decree accordingly.