Purnell v. Dudley, 57 N.C. 203, 4 Jones Eq. 203 (1858)

Dec. 1858 · Supreme Court of North Carolina

57 N.C. 203, 4 Jones Eq. 203

ELIZA PURNELL and others against C. H. DUDLEY and others.

The general intention of a testator, if declared in a will, must so far control a particular clause, as to prevent an absurdity and an incongruity with other provisions of the will.

Where, therefore, a testator left seventy-five slaves to three of his sons, and a number of others to be sold, and out of the proceeds, for his debts to be paid, and to each of his three daughters, a sum equal to the estimated value of the share of the sons, and provided, that if such shares of the daughters were not equal to those of the sons, they should be made so by paying his daughters such sums as would make their shares equal to the value of the slaves given to the sons, and it turned out that the debts absorbed the whole fund; it was Held that the daughters could only claim from the sons so much as would make all their shares equal.

Cause removed from the Court of Equity of Onslow County.

Edward B. Dudley, made his will on the 15th of October, 1852, and therein, after providing for his wife, devised and bequeathed as follows:

“ Thirdly. I give to my sons, Christopher, William H. and Robert, and their heirs, as tenants in common, all my plantation and lands in Onslow countjr, and sixty slaves, including Jim and his wife, &c., and the balance of the sixty to be chosen by my sons ; and I direct that the whole of the said sixty slaves, when chosen, shall be valued by Edward Montforth and George Ward. I also give to my said sons, all my horses, mules, cattle, hogs, sheep, and poultry, farming utensils, and plantation stock of every kind, and I request my sons to keep this property and work it together.”

“Fourthly. I direct that all the residue of my slaves, except those mentioned in the ninth clause, be sold as soon as convenient, and out of the money, arising from the sales, my executors shall pay my debts, and the residue of the said money, after payment of my debts, if not more than the value of the sixty negroes given to my sons, estimated, as above, I give and bequeath, to be equally divided between my daughters, Eliza A. Purnell, Jane Johnson and Margaret Mcllhenny. And if the said residue, after payment of my debts, be less than the estimated value of the said sixty slaves, then I desire and direct that my said sons make up the deficiency to my said daughters, by paying them such sum as will make the said residue equal to the said estimated value, and I charge the said deficiency upon the lands and slaves given to my said sons. And if the said residue shall be greater than the estimated value of the sixty slaves, then, the excess shall be equally divided, among all my said children — my object in the disposition of my slaves, being to make the shares of all my children, in them, and their proceeds, of equal value.”

By the fifth, sixth, and seventh clauses, the testator gives specific legacies of stocks to his three daughters, respectively, and, by the eighth, he confirms some gifts of slaves he had made to his children ; and in the ninth clause, he gives certain lands, and certain slaves, by name, to his executors, in trust, fo-r a gentleman and lady, named, during their lives, and that of the survivor; and upon the death of the survivor, in trust, to be sold, and the proceeds divided equally among all his children ; and the rest and residue of his estate, of every kind, is then given to all his six children equally.

By a codicil, dated June 9th, 1853, he disposes as follows: “ I increase the number of slaves, given to. my sons, from sixty to seventy-five — hereby altering the third and fourth clauses 'of my will, so as to provide for the said increase in the number of slaves, but in no other respect whatever.”

His two sons, Christopher and "William H., are the executors.

The three daughters brought this bill against the three sons, praying for an account against the executors, and that what might be found due to the plaintiffs, respectively, should be paid by the executors, or be raised out of the land and slaves given to the sons. Those slaves were selected by the sons, .and valued at $37,425, by the persons designated in the will. After answers, submitting to an account, it was referred to the master to take the account of the administration, and ascertain the balance, after payment of debts, applicable to the satisfaction of the legacies to the plaintiffs. The report is, that the residue of the slaves, after taking out seventy-five for the sons, sold for $13,212 90, and that the general residue of the estate, consisting of cash, debts, sales of crops on hand, and furniture, and a balance of interest received, amounted to $10,115 30 — making an aggregate of $23,327 93, and that the disbursements, without the allowance of any commissions, amounted to $21,948 39, and, therefore, that the balance of this fund is only the sum of $1,379 54.

There are two exceptions to this report — one on the part of the plaintiffs that the master did not charge the defendants with $100, the value of the cotton-seed which had been put up at the testator’s death, for planting, the succeeding year; and the other, on the part of the defendants, because no commissions were allowed to the executors.

Moore and W. A. Wright, for the plaintiffs.

J. H. Bryan, for the defendants.

Rurrin, J.

The plaintiff’s exception is allowed. Cotton seed is no more a part of “ plantation stock,” than corn or ■wheat for seed, or, indeed, for provisions for the year, and it therefore belongs to the general residue.

The executors do not appear to have claimed commissions before the master, and therefore he very properly did not allow them, and the defendants exception is overruled. But it would be futile to claim them, since that would only reduce the residue, and that reduction the sons would have to make good out of their land and negroes, according to their argument upon the main question which is now to be considered.

ITpon the finding of the master that the proceeds of the residue of the slaves, after the payment of debts, is only $1,379 54, it is contended, on the part of the plaintiffs, that the sons must pay them in money as much as will, with $1,379 54, be equal to the estimated value of the seventy-five slaves, that is, $37,425. The argument is based on the force of the terms used in the. sentence of the will, respecting the case that has happened : “ If the said residue be less than the estimated value of said slaves, then I direct that my sons shall make up the deficiency to my daughters, by paying to them such sum as will make the said residue equal to the said estimated value,” and it takes those terms, as standing by themselves, in their literal sense, and creating, strictly, a contingency on which the value of the whole of the negroes must go to the daughters. But the testator had no such meaning in that clause. On the contrary, it was merely to provide, in part, a mode by which the daughters and sons should divido equally the two funds, consisting of the residue and the slaves, by leaving the property in the slaves with the sons, and charging it with money, in favor of the daughters, for equality. He expressly says that was the “ object ” of the several particular directions for the sons’ paying more or less, and the declaration of that purpose is added as explanatory of those directions. They are, that if the residue shoidd not be more nor less than the value of the slaves — • that is, just equal to it — the daughters were to have the whole of it; if it should exceed the value of the slaves, the daughters are to take as much of it as the slaves are valued at, and the excess equally divided between the six. That produces an exact equality in the two cases according to the declared intention. Then comes the case of the residue happening to be less than the value of the slaves, and in that case the daughters are to have it, and the sons are “ to make up the deficiency” to the daughters,in money. What deficiency? Plainly, that by which the daughters got less than the sons ; so as by that payment to produce equality again. It is said, however, that there are express directions how the deficiency is to be made up, namely, “ by paying them such sum as will make the residue equal to the value of the slaves,” and that such directions cannot be controlled by the use of any general term in other parts of the will. But a will is to be taken all together, and each part may be more or less affected by the context; and, certainly, different clauses are to be reconciled, if possible, and if that cannot be done, then the general intention of the testator, if declared in the will, must so far control a particular clause as to prevent an absurdity, and an incongruity with other provisions which might arise from its own terms — the particular intent yielding to the general intent where they are incompatible. Here it is impossible to doubt the purpose of the testotor; and the construction contended for by the plaintiffs is incongruous with the alternative provisions for equality in the other two cases of an equality or excess of the residue with or above the value of the slaves, and directly inconsistent with the general declared purpose, “ to make the shares of all my children in the negroes or their proceeds of equal value.” Therefore, that general provision, may be transposed so as to annex it to each of the directions for the dispositions of the residue — which is always admissible to effectuate the intent; and the clause under consideration will then read, “by paying to my daughters such sum as will make their shcures of the slaves and their proceeds, and the shares of my sons, equal in value.” That is the only sensible meaning to be given to the will, as a whole, and makes it consistent with itself; and that was evidently the intention of the testator, and just between the children.

Per Curiam, Let the rights of the parties be declared accordingly