Dew v. Barnes, 54 N.C. 149, 1 Jones Eq. 149 (1854)

June 1854 · Supreme Court of North Carolina

54 N.C. 149, 1 Jones Eq. 149

JOHN DEW AND OTHERS against EDWIN BARNES, ADMINISTRATOR AND OTHERS.

In the construction of a will, in order to arrive at the intenfion of th® teslator, a word will be suppled when the sense of the clause in question, as collected from the context, manifestly requires it.

Cause removed from the Court of Equity ofEdgecomb County at the Spring term 1854.

The bill was filed by the plaintiffs, as the next of kin of Benjamin Simms, against the defendant Edwin Barnes the administrator of said Benjamin and against Willie Simms who set up a claim to the property sought to be distributed, under the will of James Simms. The principal question, between the parties arises upon the construction of the will of James Simms executed in September, 1846, shortly before the death of the testator. At the time of his death the testator had two sons, the defendant Willie, who was then about nineteen years of age, and Benjamin, aged about seventeen, and four daughters. He left also a widow.

By several clauses in this will, the testator devised and bequeathed to each of his daughters, by name, considerable legacies in land, money, slaves and other property in kind. By several other clauses in the same will, he devised and bequeathed to Beniamin, the remainder in a tract of land after the death ofliis mother, also another tract of land, eight slaves by name, and their increase, and various other kinds of property : and to his son Willie he gave land, slaves by name and various other kinds of personal property and immediately succeeding these devises and bequests to his two sons, he adds these words, “ If either of my should die without a lawful heir the longest liver heirs the whole of both estates.” Benjamin died without ever having had a child or children (never having been married) leaving Willie him surviving and the defendant Barnes as administrator took possession of and now holds all the personal property bequeathed to him by the will of the testator, James, his father. The plaintiffs insist, that by a proper construction of the above recited will the intestate Benjamin took an absolute estate in the property given therein to him, and that they, ashisnoxt of kin, with the defendantWillie and Mrs. Barnes are entitled to distributive shares of the slaves and other personal estate thus bequeathed. While the defendant Willie contends, that under the will aforesaid, this limitaition was contingent and that on tlie death of the said Benjamin without issue the property vested in him as the longest liver of the two sons.

The defendant Barnes submits in his answer to pay and distribute tlie estate in bis bands to whomsoever the court may consider entitled to the same and asks to be advised as to bis duty in this particular.

The prayer of the bill is for an account of the assets in the hands of the administrator and for general relief. The cause was set down for hearing, on the hill, answer and exhihits and transmitted to this court by consent of parties.

Biggs for plaintiffs,

Moore for defendants.

Battle, J.

No rule of law is better settled or more generally kn >wn, than tliat in the construction of a will, the intention of the testator, apparent in the will itself, musi govern —and that in older to effectuate that intention, as collected from (he context, words may, when necessary, Le suj plied, transposed or changed. 1 Jaiman on wills ch. 16, page 427 . — Sessoms vs. Sessoms. 2 Dev. and Bat. Eq. 453. The difficulty in the clause of the will which we are called upon to construe, arises, manifestly, from the omission of one or more words, which makes the sense incomplete. But n > person in reading the will can doubt for a moment wha' the omitted words wer e intended to he. The tes ator had in preceding clauses, given to each of his twm sous land, slaves and stock, and then subj. lined the clause in dispute. “If either of my should die without a lawful heir, the longest liver heirs the whole of both estates.” The word “either” taken by itself' signifies “one or another of any number,” but it is here confined to two, by force of the word “both,” which signifies “two, considered as distinct from others, or by themselves.” The omitted word or words then is, or are “sons” or “two sons,” and it is so plain that such and no other was the testators meaning, that no argument can make it plainer. It is manifest, also, that by dying without a lawful heir, the testator meant a lawful child; because if the one or oth er brother died without heirs in a technical sense, there could be no survivor. One of the sous having died unmarried and childless, his estate goes under the limitation to his surviving brother, there must be a decree to that effect.

PER Oueiam. Decree accordingly.