Adams v. Gillespie, 55 N.C. 244, 2 Jones Eq. 244 (1855)

Dec. 1855 · Supreme Court of North Carolina

55 N.C. 244, 2 Jones Eq. 244

PETER ADAMS, ADM’R. WITH THE WILL ANNEXED, against FRANCES GILLESPIE AND OTHERS.

Where one bequeathed personal property to his wife for life, and then to his daughter for her life, and then to her (the daughter's) surviving children, it was Held that the wife’s dissent from the will removed the interposed life-estate, aud that the daughter took the property immediately.

Where one-half of the value of a female slave and one-half of her increase were given to the wife, and the other half to a grand-son, but the hire of all the slaves, including this, had, in a previous part of the will, been given to the wife for life, and then to her daughter for life, it was Held that the slave should be sold, and that half the value of the slave should go to the widow, and the interest on the other half of the value be paid to the daugh- ' ter during her life, and after her death, the principal be paid to the grandson, •

Where a horse, saddle and bridle were bequeathed to an infant, -under five years of ago, there being no such chattels on hand, the executor was directed not to buy the articles; but it was Held that, in the distribution of the estate, the child’s share should bo augmented by the value of these articles thus pretermitted. *

Cause removed to this Court from the Court of Equity of Guil-ford County.

C. A. Gillespie died in the year 1854, leaving a will which was duly proved; and there being no executor named therein, the plaintiff was appointed Administrator with the will annexed, by the County Court of Guilford. The administrator seeks the advice of the Court as to the proper construction of the will, which is as follows:

“ Item 1. I give and devise unto my beloved wife, Franees Gillespie, the bouse and lot whereon I live, all my household and kitchen furniture, and all necessary firewood off of my land, and also the proceeds of the annual hire of my negroes whicli said property my said wife is to have during her life, and after her death, to go to the children which my daughter Louisa "Whittington may leave at her death, she, to wit, my said daughter, having the benefit of said property, to her solo .and separate use, during her life, after the death of my said wife. • '

“Item 2. I give absolutely to my said wife, one half the 'value, and one half the increase of a negro girl, Jane; the other half the value, and half the increase, I give to my grandson, Monroe Whittington, and his heirs forever; also to my said wife, one horse and one cow, her choice of each, my car-liage and tbe interest of all my money on hand, or at interest at my death.

“Item 3. I give and bequeath to my grandson, Monroe Whittington, my gold watch, a good horse, saddle and bridle; and to my grandson, Henry Whittington, my silver watch, also a gooÜ horse, saddle and bridle. I also give to my grandson, Monroe, a negro girl, Doucy Anne, and her issue, to him, his heirs and assign's forever; but if he should die under age, and leave no issue, then the girl, Doucy Anne, and her issue, are to be equally divided between his brothers and sisters.

“ Item 4. All the residue of my property not herein disposed of, whether of my own acquisition, or belonging to me by descent, devise, or otherwise, I desire may be equally divided between the children of my daughter, Louisa J. Whit-tington, that may survive her.

“ Item 5. I also give, devise and bequeath to my grandson, not yet named, he being the third child of my daughter, Louisa J. Whittington, a good horse, saddle and bridle.”

The widow of the testator dissented from the will, and claims her dower in the land, and a third of the personal property, besides a year’s allowance in the crop, stock and provisions. Louisa J. Whittington is the only child and heir-at-law of the testator, and having intermarried with Alphonzo Whittington, has three children, to wit: Monroe, Henry, and Charles, besides being enceinte with another.

The plaintiff states in his bill, that lie has sold all the personal property, except the slaves and the watches; and being in doubt as to the construction of the will, asks the instruction and direction of the Court in the following particulars:

As the widow has dissented from the will, what becomes of that which was left to her for life? Does it go to Mrs. Whittington -immediately, or is her enjoyment of it to be still postponed to the death of the widow Frances ?

If Mrs. Whittington takes it now, is it to be paid and delivered to her husband and herself, or to some other person for her ?

Inasmuch as all the slaves would seem to be included in tlie first clause, giving the widow their hires for her life, and then to Louisa for her life, when is Monroe, who is an infant, five years old, to come to the possession and enjoyment of his legacy of half the value of the slaves, Jane and Doucy Ann, and their issue? "Would he be safe in delivering the slave, Doucy Ann, to Alphonzo Whittington, as the guardian of his son, Monroe ? What is to be done with the girl, Jane, the widow having dissented ? Can she be sold, and the money distributed ? — if so, upon what terms ? — of is she still to be hired out, in order that Louisa may get her share of the hire for her- life ?

What is he? to do with the watches ? and what is his duty in relation to the horse, saddle and bridle bequeathed to- each of these infants ? Is he to buy such articles, if they be not on hand ? — and if so, at what time ? — ■ and if to be bought, from what source is he to raise the funds ?

What is the Administrator’s duty in regard to the residuum under the 4th clause of the will ? Does Mrs. Whittington take an estate by implication under the will ? or is it hers by descent during her life ?

The widow, Mrs. Trances Gillespie, Alphonzo Whittington, and his wife Louisa J. Whittington, aüd their children, by their guardian, all join in an answer, adnditting the facts as set out in the plaintiff’s bill, and agree to submit to the advice and direction of the Court in the premises.

The cause wras set down for hearing on the bill, answer and exhibit, and removed to this Court by consent.

Millet and Qilmet$ for plaintiff.

Uo cdtinsel for the defendants in the Court.

Battíé, J.

The will which is now submitted to us for construction, does not disclose much inherent difficulty in the ascertainment of its meaning. The doubts which are suggested in relation to it, have been raised principally by the act of the testator’s widow in dissenting from it. By that dissent she has become entitled to her dower of one-third of all the testator’s real estate for her life, and to an. absolute-interest in one-third of all his personal property which may remain after the payment of all the debts and the charges of administration ; but her share “■ shall be allotted to her in such manner as to create as little derangement of'the-provisions of the will, as practicable.” (Rev. Stat. ch. 121, sec. 12; Rev. Code ch. 118, sec. 12).

Having premised these remarks, we proceed to state the construction which, in our opinion, must nq,w be placed upon the will. The dissent of the widow has removed her life-estate from all the property given to her by the will, and which she does not take independently of it, and the effect of it is to hasten the enjoyment of the life-estate- dfevised and bequeathed to the testator’s daughter. The estate thus given to the daughter, embraces all the slaves which may not be allotted to the widow; for though the girl Doucy Ann, and one-half of the ;girl Jane, are given to the testator’s grandson, Monroe Whittington, in terms which might otherwise import a present bequest, yet, to make it consistent with the first clause of the will, the bequest must be subject to the life-estate of the legatee’s mother. It is unnecessary to decide whether Mrs. Whittington takes the real estate for her life by implica-’ tion from the will, or by-descent, as being undisposed of by the devise. It is certain that she takes it the one way or the other; because the interest of her children in it is.expressly postponed until her death. The gold and silver watches are specific legacies, and must be delivered to the guardian of the legatees, to be kept for them. The testator, not having such articles on hand to make the legacies specific, could not have intended horses, bridles and saddles to be bought immediately for children from one to five years old; but the legatees to whom they are given, will be entitled to their value at the death of their mother, which will make their shares of the residue greater, by the value of such horses, &c., than those of the- other children, in the division at the death of their mother. The share of Monroe Whittington, in that division, will bo further increased by the girl, Doucy Ann, and her increase, and by half the value of the girl Jane.

In allotting the widow’s share, sbe must have, as a part of it, half tbe value, of the girl, lane, and for the purposes of a division, the girl must be sold ■; and after the widow gets half the proceeds, the interest on the other half must be paid to the daughter for life, and then the principal will belong to Monroe.

As the property given to the daughter for her life, is expressed to be for her sole and separate use, she must have á trustee appointed to hold it for her, to whom it tvill be the duty of the administrator to deliver it. The daughter’s estate for life, in tli# real estate, whether acquired by descent or divise, is sufficiently secured to her by the Act of 1848, ch. 41. (Rev. Code, ch. 56, sec. 1).

The necessary accounts must be taken, and the cause will be retained for further directions upon the coming in of the report.

Pee Cu&iaM. Decree accordingly.