Shull v. Johnson, 55 N.C. 202, 2 Jones Eq. 202 (1855)

Aug. 1855 · Supreme Court of North Carolina

55 N.C. 202, 2 Jones Eq. 202

EVE C. SHULL AND OTHERS against B. S. JOHNSON, ADM’R. cum. tes. an. AND OTHERS.

The expression all my nephews and nieces in a bequest, includes nephews and nieces of the half blood as well as of the whole blood.

Í! My nephews and nieces that may be living at, or after my decease1’ in a will, embraces, as well, those nephews and nieces who are bom after the testator’s death, as those who were living at his death.

Great nephews and nieces will not be included in such a bequest,

Where there is nothing in a will to show an intention that the legatees shall hike by families, they take per capita.

Cause removed from the Court of Equity of Lincoln County.

This bill was filed by the plaintiffs who are the nephews and nieces ol Anthony Shull of the half blood, being the children of his half brothers and sisters against the administrator with the will annexed, and against the nephews, &c., of the whole blood, to compel the payment of the legacies claimed by them under said will.

The clause of the will under which the several questions involved in the case are raised, is as follows :

Item. “ I give and devise’ to my brothers and sisters children or all my nephews and nieces all the balance of my estate that is left, if there be any left after the above is taken out and discharged as I have above specified.”

“ All my goods and chattels, if I have any at my decease, to be sold to the highest bidder, and the money collected, if it can, and all my debts, dues, notes and accounts that is coming to me, that can be got or be collected, or as it can be collected, and to be equally distributed amongst my nephews and nieces, that may be living at or after my decease, and my executor is not to pay over to any of them their part until they came of age, or have chosen and have a guardian legally appointed by law to pay it over to.”

The exerator named in the will having declined to qualify, the defendant, Johnson, took out letters of administration with the will annexed. ITis answer sets forth the facts upon which the several questions treated of in the opinion of the Court arise, and he. prays the advice and protection of the Court of Equity in making payment of the legacies due and arising under the clauses set forth.

The other defendants answer, and refer to and rely upon the answer of the administrator.

The cause was set down for hearing upon the bill, answers, and exhibit, and sent to this Court by consent of parties.

Lander, for the plaintiffs.

Thompson, for the defendants.

Battle, J.

There is no serious difficulty in either of the questions arising upon the construction of the will of the testator, which the pleadings present for our decision.

1. By the clause “I give and devise to my brothers’ and sisters’ children, or all my nephews and nieces all my estate,”1 ■&c., the testator manifestly intended to include his nephews and nieces of the half, as well as of the whole blood. They certainly answer the description ; for if they are not nephews and nieces what are they ?

■ 2nd. The clause “ my nephews and nieces that may be living at or after my decease,” not only embraced those who were living at the testator’s death, but also operated as an executory devise to all those who might be born afterwards. Such an executory bequest is certainly a valid one, and in the present case, no other construction will give effect to the words living “ after my decease.” Each nephew or niece who has been born since the death of the testator, or who may come into existence hereafter, is, and will be entitled to a share of the estate, and the executor in paying over the shares, respectively, of the present claimants, will have a right to demand a bond for refunding what may be necessary to |3ay the portion of such nephews and nieces as may hereafter be born. It is hardly necessary to say that great nephews and nieces will not be embraced.

3rd. Tire legatees will take per capita and not per stirpes. The testator has made no distinction of families, and the nephews and nieces all take equally, share and share alike.

, The plaintiffs are entitled to a decree for an account, if they desire it, and for the payment of their legacies upon the principle of division herein before set forth.

Pee CuRIAm. Decree accordingly.