Joiner v. Joiner, 55 N.C. 68, 2 Jones Eq. 68 (1854)

Dec. 1854 · Supreme Court of North Carolina

55 N.C. 68, 2 Jones Eq. 68

JAMES JOINER, ADM’R. against NOAH JOINER AND OTHERS.

A true and certain description of a Slave by name in a will cannot be obviated by a further, and unnecessary description which is untrue.

Where a will contains a clear and unambiguous disposition of property it shall not be allowed to be revoked by a doubtful expression in a codicil.

As a general rule, children of a woman slave, born after the making of a will, do not pass under a bequest of the mother, but if it is manifest from the will itself, that such issue was intended to pass, it will be so declared by the Court, and such intention may be manifested by a codicil as well as from something appearing in the will itself.

Cause removed into this Court from tbe Court of Equity of Pitt County, Fall Term, 1854.

Tbe Bill Was filed by tbe Administrator with tbe will annexed, of John Joiner, to obtain, a construction of the will. The clauses upon whieh'the several questions arise are as follows:

“ I give to my three grand-sons, John H. Hines, Robert Hines and. Amos Hines, the children of my daughter Patsey Hines, a certain tract of land, lying in the County of Oreene; (describing it.) I also give to them the negro woman Rachel with all her children and grand-children which was in the possession of their mother Patsey Hines at her death: also I give to the aforesaid grand-sons the negro man Willis, the negro woman Hannah and the hoy Hrwin.

“ 4th, I give to my son Noah Joiner all the negroes I have heretofore put in his possession, and add to them now the cooper Joseph, the hoy Allen and James.”

Some three years after the execution of this will, the -testator made the following additional clause:

“ First. I do give to my son George Joiner the negro man Charles. I do give to my son Noah Joiner the negro man Howard, and to my son James Joiner the negro man Sampson, and to my son John, I do give the hoy Allen who is before mentioned to my grand-sons. It is my will in the division of the negroes before mentioned to my grand-sons of the negroes, that John Hines do have the negro man Willis and that Robert Hines have the hoy James and .that Amos Hines have the woman Hannah and her child and all 'other children she may have.”

At the time of making this will and O'odicil the testator owned one negro man named Allen, and two by the- name of Jim or James, and never owned any others bearing those names; one of these latter two (James) was a valuable young man. The other James was very old, supposed to henear one hundred, and not only without value, but an expense.

There were, at the death of the testator, a number of valuable slaves not specifically bequeathed, which were disposed of in a residuary clause.

The bill alleges that there are difficulties in the way of making a settlement and final disposition of the property in his hands growing out of the apparent contradictions in several of the Requests and tlie conflicting claims made upon him in consequence thereof. He represents, in his hill, that John claims the hoy Allen by virtue of the additional clause or codicil who had been bequeathed to Noah' in the body of the will, while Noah contends that the additional description of Allen as being one that had been given to his grand-sons in the body of the will shows that Urwin was meant and not Allen, for that Urwin had been thus given, but not Allen, The bill suggests that John claims Urwin if Allen be decreed to Noah.

Another difficulty is suggested in the Plaintiff’s bill, which is that Robert Hines, one of the grand-sons, claims James by force of the additional clause set forth above, while Noah says that he is entitled to hold James by force of the 4th item in the will, for that the expression relied on is merely directory as to how a division shall be made of the property before mentioned and given to the grand-sons.

The bill further suggests that under the additional clause of the will, Amos Hines claims the child of Hannah which was born after the body of the will was executed, but before the codicil, while the residuary legatees insist that., by a fair construction of this clause, this child of Hannah belongs to them, for that the testator in this clause intended no new bequest to his grand-sons, but only to make a division of those already given.

The several defendants answer the bill and assert their several claims in the manner and for the reasons represented in the plaintiff’s bill, except that Noah sets up no claim to have Urwin, in case Allen is taken from him.

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

Stubbs for plaintiff.

Biggs, Moore and Rodman for the defendants.

Battle, J.

The addition which the testator made to his will, in November, 1851, and which he calls an “ additional clause,” is undoubtedly a codicil. It was written more than three years after the will, and was intended to. alter it in certain particulars. It comes, therefore, directly within the most approved definition of a codicil, which is “ a supplement to a will or an addition made by the testator and annexed to and to be taken as a part of a testament — being for its explanation or alteration or to make some addition to, or subtraction from, the former disposition of the testator.” 2 Black. Com. 500. Williams on Ex’trs. 8.

In the construction of wills, the leading and controlling object is, to ascertain the intention of the testator; and in order to accomplish this purpose, technicalities may be disregarded and irregularities of form overlooked. The same rule applies to a codicil so far as the construction is confined to itself: but when taken in connection with the will to which it is annexed, there is said to be a difference between inconsistent provisions when found in the body of the will itself, and when in the will and codicil, arising from the fact that in the former case, both provisions have effect from one and the same act of publication while in the case of the will and codicil the provisions contained in the codicil necessarily modify or revoke those inserted in the will. Green v. Lane, 8 Ired. Eq. 70, S. C. Busb. Eq. 102. Mr. Jarman, in his Treatise on wills, says that “ numerous arc the questions with regard to the extent to which a codicil affects the dispositions of a will or antecedent codicil and which are commonly occasioned by the person framing the codicil, not having an accurate knowledge or recollection of the prior testamentary paper.” i£In dealing with such cases- it is an established rule not to disturb the dispositions of the will farther than is absolutely necessary for the purpose of giving effect to the codicil.”— *£ Another principle of construction is, that where the will contains a dear, unambiguous disposition of property, real or personal, such a disposition is not allowed to be revoked by doubtful expressions in a codicil.” See Jarman on Wills, 160 & 165. These propositions are supported by numerous authorities, and the principles, which they announce, will be found to afford material aid in clearing up the difficulties suggested by the pleadings in this ease.

1. The first question is raised by the conflict between the will and codicil, with regard to the bequest of the “ negip boy Allen.” The testator had but one negro boy of that name, and by his will he gave him in express terms to his son Noah j whereas in his codicil he says, “ to my sort John I do give the negro boy Allen, who is before mentioned to my grandsons.” The defendant John claims Allen under this bequest in the codicil, while EToali contends that the express gift of the boy to him by the will is not revoked, because he is described as having been given to his grand-sons, which shows that the testator made a mistake, and it is apparent that he intended to give to his son John the boy Urwin, who was mentioned to his grand-sons. We are saved the necessity of discussing this question upon principle, because it has been frequently discussed before and is settled by authority in favor of John. It is a clear case for the application of Lord Bacon’s rule, that veritas nommis tollit errorem demonstrar tioms: the true and certain description of the boy Allen by his name, cannot be weakened by the further and unnecessary false description that he had been before mentioned to his grand-sons. Proctor v. Pool, 4 Dev. Rep. 370, Simpson v. King, 1 Ired. Eq. 11, Ehringhaus v. Cartwright, 8 Ired. 39, Barnes v. Sims, 5 Ired. Eq. 392, Thomas v. Thomas, 6 Term Rep. 671, Goodtitle v. Southern, 1 Maul. & Selw. 299.

The bill suggests that in the event the Court shall decide that the defendant John is entitled to the boy Allen, then the defendant Noah will claim that he is entitled to Erwin in his stead, but the answer of this defendant sets up no such claim j but if it did, there would be no pretence for it.

2nd. By one clause of his will, the testator gave to his son Noah, among other slaves, “ the boy Allen and James.” In the preceding clause he had given to his three grand-sons John IT. Hines, Eobert Hines, and Amos Hines, among other slaves “ the negro man Willis, the negro woman Hannah, and the boy Erwin.” In his codicil he declares that “it is my will in the division of the negroes before mentioned to my grand-sons of the negroes, that John Hines do have the negro man Willis, and that Eobert Hines have the boy James, and that Amos Hines have the woman Hannah and her child and all other children she may have.” The testator had but one negro boy named James, but be bad a man of that name nearly a hundred years old, who was not only of no value but actually expensive. At the date of his will, the woman Hannah had no child, but she had one born after the making of the will, and living at the date of the codicil. The defendants, Noah Joiner and Robert Hines, both claim the boy James, the former by the bequest in the will, and the latter under the codicil. The defendant Noah insists that the express legacy in the will to him is not revoked by the codicil, because the latter does not propose to give any thing to the grandsons, but only divides among them what had been already given by the will, and that the name of James was manifestly inserted by mistake instead of Urwin, who was bequeathed to the grand-sons and was not taken from them. The defendant, Robert, contends that the terms of the codicil imported an express bequest of the boy James to him, and was, therefore, a revocation of that to the defendant Noah, if indeed the boy James was given to Noah by the will; but he insists that the James mentioned in the will was the old man James, and if so, there was no conflict between the will and codicil. We certainly do not concur in the latter part of the construction contended for. A legacy imports a bounty, and we cannot, for a moment, believe that a father would mock his son by giving him, as an apparent bounty, an old negro, who was then and might be for several years a burden to his owner. He -would rather, in proper terms, have confided the old man to his care and have given at the same time the means for keeping and providing for him. We say this without adverting to the fact that the term boy is applied to Allen, -who is mentioned in the same connection with James, and the term may, therefore, have been intended to apply to both. The other part of the construction insisted upon, is not so free from doubt, but upon reflection we think that is against the claim of the grand-son. The clause in question certainly does not purport to give any negro not given before, but on the contrary provides for the division of the negroes “ before mentioned” among his three grand-sons. James was not before mentioned in the gift to his grand-sons by the will, but the boy Urwin was. We think, therefore, that taking the will and codicil together there is an apparent mistake of James for Urwin, and that the latter passes to the grand-sons and the former does not, thus giving eifect to the rule herein before stated, “ that where the will contains a clear and unambiguous disposition of property, real or personal, such a gift is not allowed to he revoked by doubtful expressions in a codicil.”

3rd. Upon the construction which we have just adopted as the true meaning of the last clause of the codicil, the residuary legatees of the slaves contend that they are entitled to the child of Hannah which was not horn at the date of the will, and which they, therefore, contend did not pass under it by the bequest of Hannah to the testator’s grand-sons. It is true that the general rule is that the bequest of a female slave, or of her and her increase will not carry any child she may have between the publication of the will and the death of the testator. Stultz v. Kiser, 2 Ired. Eq. Rep. 538. But if there be any expression in the will showing an intention on the part of the testator, that the child so born shall be included in the gift of the another, then the legatee shall take it. Love v. Love, 5 Ired. Eq. Rep. 201. Such intention might be shown in a clause of the will subsequent to that in which the gift was made, and we can see no reason why it may not be manifested in a codicil; one office of which, as appears from its definition, is to explain the will. According to this explanation then, the defendant, Amos Hines, takes the child of Hannah as being included in the gift of the mother.

A decree may be drawn declaring the rights of the parties in accordance with this opinion, and the costs must be paid out of the assets in the hand of the plaintiff, as administrator with the will annexed.

PeR Oueiam. Decree accordingly.