Holderby v. Holderby, 57 N.C. 241, 4 Jones Eq. 241 (1858)

Dec. 1858 · Supreme Court of North Carolina

57 N.C. 241, 4 Jones Eq. 241

J. HOLDERBY and others against M. C. HOLDERBY and another.

A bequest of slaves and other property to A, and her “increase,” without any allusion to a particular estate in her, and without any terms to qualify or control the meaning of “ increase,” was IMd to confer upon A, the mother, the absolute property.

Cause removed from the Court of Equity of Rockingham cty.

By her will, dated September 17th, 1854, Sarah Mills bequeathed as follows: aI will and bequeath to my daughter, Sarah C. Holderby, one negro woman, Anne, and her child, Edmund, and her increase, to her and increase forever; also one bed and bed-stead, cupboard, and one cow, to her and her heirs forever.” By other clauses, she gives several slaves and sums of money to her other children respectively, “ to him (or her) and his (or her) heirs forever.” The testatrix died in October, 1854. The plaintiff, James, the eldest child of Mrs Holderby, was born before the making of the will, and since the death of the testatrix, the two others, who are also plaintiffs, have been born. The will was proved in November, 1854, and the executor assented to the legacies to Mrs. Holderby, and delivered the slaves and other articles to her husband, Marcus C. Holderby, and the negro woman has had another child in his possession. In 1858, Marcus 0. Holder-by conveyed the three negroes to the defendant Watt, as trustee, for the benefit of his creditors, by7 sale, and applying the proceeds to the satisfaction of their debts; and the trustee was about selling the negroes in absolute property.

The bill is filed by7 the three infant children against their father and the trustee ; claiming that the bequest is to their mother for her life, with remainder to her children ; or, if not, that it is to her and the son James as joint tenants; and praying, that a construction of the will may be made, and the rights of the plaintiffs respectively declared, and their or his share severed.

Morehead, for the plaintiffs.

T. Jtuffm, Jr., and Phillips, for the defendants.

Ruffin, J.

The only case cited in support of the first position, is that of Chestnut v. Meares, 3 Jones’ Eq. 416. But that turned on the peculiar provisions of the singular instrument, on which the question arose, and the main purposes of the instrument as declared in it, which would have been frustrated by a contrary construction. It has no application here, which is a simple, immediate, and absolute gift to the donee or donees, without the least allusion to any particular estate. In whatever the daughter gets, therefore, she must take the entire property.

It was next argued for the plaintiffs, “that- increase”meant “children,” and if so, then, that the birth of James, before the making of the will, brought the case within one of the resolutions of Wild’s case, 6. Rep. 16, and he takes jointly with his mother. But “ children” cannot be substituted for “ increase,” because the latter word means more than the former, and, like “ progeny7,” “ posterity,” or “ seed” takes in all descendants — excluding only collaterals. Without any other word in that clause, or in the context, to control it, the Court cannot impose on it the • restricted sense of “ children.” It would not serve the purpose of the argument, to strike out that word from the will, because the gift, to the daughter, would then be absolute upon the previous terms of the gift; which is, simply, the gift of a personal chattel, and carries the whole property to the legatees. If “ increase” stand in the will, it would not help the plaintiffs even to interpolate “children,” so as to make it read “ children and increase.” Eor, in Roe v. Lowe, 1 H. Bl. 446, it was held, that a devise of a copyhold in trust, amongst other things, “ that A, then the tenant, and his children and posterity, which shall succeed, shall never be put forth or from the same, but always continue the possession, paying £11 rent,” gave A an equitable estate tail. That made “ posterity” not only a word of limitation, but one that was not controlled by being coupled with “ children,” which, although it may be a word or limitation, is usually, and in its natural sense, a word of purchase. “ Increase” seems to be here used, as exactly synonomous with “posterity” — both taking in all lineal relations, descendants, or seed. As long ago as Lord Coke’s time it was laid down, that a devise to one “forever” gives a fee simple, and to one, “ et semi/ni suo” gives a fee tail; and consequently, the absolute property in a personal chattel; Co. Lit. 96.

Here, the gift is expressly to the daughter, and to no one else; and to that gift are annexed words of perpetual succession “ to her and increase forever.” That denotes simply the quantum of interest to be taken by the daughter, and does not introduce another class of persons as purchasers with her; in other words, the testatrix used these as words of limitation. Neither of the plaintiffs has, therefore, any share of the slaves in presentí or in fuhtro and the bill must be dismissed with costs.

Pee Curiam, Decree accordingly.