Harrison v. Bowe, 56 N.C. 478, 3 Jones Eq. 478 (1857)

Dec. 1857 · Supreme Court of North Carolina

56 N.C. 478, 3 Jones Eq. 478

CALLOWAY J. HARRISON and wife and others against WILLIAM B. BOWE, Administrator, and others.

(Construction of a will depending on the peculiar phraseology of the instrument.)

The word “ or” will be construed to have been meant for “ and" when the plain intent of the testator will be defeated without the substitu-tution; but it is never admissible, unless it is necessary to carry out the manifest design of the will.

Cause removed from the Court' of Equity of Caswell county.

Iienry Hooper died in tlie 3’ear 1853, having made and published his last will and testament, which is as follows :

“ As the laws of the State would make a different disposition of my property, after my death, than would be pleasing to me, or consistent with moral justice, I shall avail myself of this time, place, and the little strength that disease has left me, to dispose of it in a way that is most satisfactory to myself, viz:

“ 1st. I desire that an administrator may be appointed as soon as convenient, and that the court bind him in such way as it would have done, had I died without a will. Ho will then be authorised to receive all my property of every description, money, papers, and debts, &c., which is to bo managed by him, under the supervision of the court, in the way that may be deemed the best to maintain my mother and Jane B. Eichardson, during their natural lives, and also Prudence II. Eichardson, Louisa Eichardson and Iienry McAden Eich-ardson, until the said Iienry arrives at the age of twenty-one years. The above children are to receive a plain English education. When the said Iienry McAden Eichardson arrives at the ago of twenty-one years, he may, if his mother be living, become the administrator, by giving satisfactory and legal security to the court.

“ After the death of my mother and Jane B. Eichardson, and Henry McAden Eichardson has arrived at the age of twenty-one years, all the negroes are to be liberated, on condition of their leaving the United States, or performing any other condition that the policy of the State and the times seem to require; but such as or may wish to serve, will be at liberty to remain on the plantation as slaves, and they, and every species of property, together with the money, &c., are to be delivered over to the said Henry, after he has given good free-hold security, that may be deemed sufficient to the court, that he will maintain his two sisters until they marry or be sufficiently provided for.”

Woodlief Hooper was appointed and qualified as administrator with the will annexed, who managed the affairs of the estate until Henry McAden Richardson, arriving at twenty-one, became administrator in his place. The said Henry Mc-Aden Richardson having died, the defendant Bowe was appointed administrator de bonis own, with the will annexed. Jane B. Richardson was the kept mistress of the testator, by whom he had issue, the said Prudence, Louisa and Henry McAden Richardson, and they had lived in the family with him up to the period of his death. The bill is brought by C. J. Harrison and wife Prudence, the legatee mentioned above, and George "W". Riggs and Louisa his wife, a legatee also mentioned above, alleging that they have not been maintained and supported out of the estate of the testator as directed, and claiming compensation for such omission and failure, and insisting that, by a proper construction of the will, they are entitled to a support, even after Henry McAden Richardson arrived at full age. The mother of the testator, as well as Jane B. Richardson, were dead at the commencement of this suit.

The prayer of the bill was for an account and settlement.

The defendants answered, not denying any thing in the above statement material to the question considered by the Court.

The cause was heard on the bill, answer and exhibits.

Bailey and Fowle, for the plaintiffs.

Rogers and Busted, for the defendants.

Battle, J.

The claim of the plaintiffs for maintenance since their brother came of age, cannot be sustained consistently with any fair construction of the will of the defendant Bowe’s testator. The primary object which the testator had in view was to provide for his own mother and the mother of his illegitimate children. lie accordingly charges, first, the whole of his property with .their maintenance during their lives, and then adds, “ and also Prudence II. Bichard-son, Louisa Bichardson and Henry McAden Biehardson, until the said Henry arrives to the age of twenty-one years.” The evident meaning of this is, that the three persons named, who were the illegitimate children of the testator, should likewise be maintained out of his property until his son should come of age. The counsel for the plaintiffs contend, indeed, that the maintenance of the son alone should be restricted until lie should arrive at the age of twenty-one years, and they insist that such is the only proper grammatical construction. In that, we differ in opinion from the counsel. The testator had just above spoken of his mother and his mistress together, and specified the duration of the support he intended for them ; and we must suppose that, in classing his illegitimate children together, he intended that the period, mentioned for their maintenance, should be the-same for all ; and this supposition is strengthened, by finding that he immediately speaks of them together, in saying “ the above children are to receive a plain English education.”

But if there be any doubt about the construction of the will, as it is to be collected from the clauses to which we have referred, it is completely removed by what follows. After the deaths of the prime objects of his bount}1-, his mother and his mistress, and after his son Henry has arrived at the age of twenty-one years, he provides that all his slaves shall be emancipated and sent out of the country, except such as are too old or are unwilling to go; and then, with the proceeds of the labor of those slaves who remain, and with the aid of all the other property, Henry is to maintain his sisters until they marry, or be sufficiently provided for. The testator evidently thought at first, that, by the time Henry came of age, his sisters would be married, or would be able to take care of themselves, and hence, the maintenance directed for them until Henry’s attaining his full age; and that was all he intended to provide for them so long as the first objects of his bounty were living.and thus needing a support. But, after they should be dead, then he was willing that the benevolent intentions towards his slaves should be carried out, and what of his property remained should go into the possession of Henry ; and if his sisters should then still be single, Henry is required to maintain them until they should find husbands to take the burden off of his hands, or until, in some other way, they should be sufficiently provided for. That seems to be the plain meaning of the language used by the testator, and was no doubt his intention. He very clearly did not intend to provide for his daughters an equal share of his estate with his son; else he would have directed au equal division, or have given them certain portions of his property, equal in value to what he gave liis son. His manifest intent, in favor of his daughters, was merely to provide a maintenance for them until a certain time short of the duration of their lives. What time? The testator answers himself, — until they married, or be sufficiently provided for. But, say the counsel, the word “ or” must be construed “ and.” Such a change of words is admissible, certainly, when the intent of the testator will be defeated without it; but it is never admissible unless it is necessary to carry out the manifest design of the will. Such is not the case, here, and the feme plaintiffs ceased to have any right to maintenance, out of the testator’s estate, after their respective marriages.

But the plaintiffs are certainly entitled to something for maintenance which they ought to have received before their brother came to the age of twenty-one years. This they allege that they have never received. The allegation is neither admitted nor denied in the answers, and it is agreed by the parties that an enquiry may be made to ascertain whether flie fact is so. Let an order be made for that purpose, and if they have not received all that they aro entitled to, to ascertain what amount is due them on that account, and let the cause be retained for further direction upon the coming in of the report.

Pee Cueiah, Decree accordingly.