Lashley v. Lashley, 48 N.C. 414, 3 Jones 414 (1856)

June 1856 · Supreme Court of North Carolina

48 N.C. 414, 3 Jones 414

ALEXANDER LASHLEY vs. JAMES LASHLEY.

A testator bequeaths to Ms daughter two slaves, and provides that she shall remain with her mother while she remains single; and then, is added the clause, “if she should die single, then, the property willed to her” to go over to others. The daughter married, but her husband died before she. did, and she did not marry*again: Held, that the limitation over did not take effect.

Action of detinue for two slaves, Dinah and Henry, tried before' Dick, J., at the last Superior Court of Orange.

This case depends upon the construction of the will of Thomas Lashley, who died in 1824. After giving to his daughter, Fanny, the two negroes in question, he adds, “It is also my desire that my daughter, Fanny, live with her mother as long as she thinks proper; enjoying the same privileges she hitherto enjoyed, while she remains unmarried; if she should die single, then, the property willed to her, to be equally divided among the rest of my legatees.”

Fanny Lashley, after the death of her father, married Thomas Thompson, who died in 1841, and she died in 1853, without having any child, and without having again married.

The plaintiff claims, as one of the legatees of Thomas Lash- %•

The defendant claimed title under the will of Eanny Thompson, which was duly executed to pass such property and proved. His Honor charged the jury that Eanny Thompson had died single, according to the meaning of her father’s will, and the plaintiff was entitled to recover.

. Defendant excepted. Yerdict and judgment for plaintiff, and appeal,

Graham, for plaintiff.

Norwood, for defendant,

Pearson, J.

The case turns upon the meaning of the word single,” as used by the testator, in the bequest to his daughter, Eanny. When applied to a woman, “ single,” in its strict literal sense, moans without a husband; but in its ordinary sense, and as used in common parlance, it denotes a class; those who have never married, as distinguished from married women and widows. We are satisfied this is the sense in which it was used by the testator. His daughter, Eanny, in respect to the legacy given to her, was the primary object of his bounty; therefore, the restraint upon it ought not to be extended by implication. The testator uses the word “ single,” in opposition to the word unmarried, and obviously had in his mind, two future events. Eanny will either marry and settle in life, like the rest of my children, or she will remain unmarried, and continue to be with her mother; in this latter event, I can restrict the legacy, without interfering with her prospects in life; so, in that case, I direct the property willed to her, to be equally divided among the rest of my legatees.

There is another view, which we think conclusive. The limitation over, is not, if she should die single, and without having children, but, simply if she should die single ; so, tak* ing the word “ single,” as embracing the condition of her being a widow, the limitation over would take effect, although she left half a dozen children. A construction which leads to such a result cannot he for a moment entertained.

It- was suggested upon the argument, that the term “single woman,” had received a judicial construction, under the bastardy law, and was extended so as to include widows. So it has been extended to married women, under certain circumstances ; but this broad construction of the word, as used in the bastardy law, is put on it to meet the mischief, and carry out the intention of the Legislature. But, as we have seen, there is nothing in the will under consideration, to extend the word beyond its ordinary meaning, and to indicate an intention to make a limitation over, if the daughter should be a widow, at the time of her death.

As the facts in this case are admitted, we will suggest to counsel, that, in all such cases, where a mere question of law is involved, the better course is to put the case in a shape so as to make the judgment of this Court final. In the way the statement of this case is made up, we can only direct a venire d.e novo.

Per Curiam.

Judgment reversed. Venire de novo.