Parker v. Parker, 57 N.C. 439, 4 Jones Eq. 439 (1859)

Aug. 1859 · Supreme Court of North Carolina

57 N.C. 439, 4 Jones Eq. 439

WILLIAM PARKER and others, against THOMAS PARKER and others.

‘‘ Increase” annexed to tlie gift of a female slave, in a will, does not, per se,1 pass tlie issue bom before the the testator’s death; and the Court cannot reject a word which makes a phrase insensible, and substitute another which makes it sensible, in order to make such increase pass, unless something in the will itself justifies such rejection and substitution.

Cause removed from the Court of Equity of Butherford county.

William Parker made his will in March, 1844, and gave all his property, real and personal, to his widow, Polly, during her natural life, and then, after giving land and slaves specifically, to several of his children, after the death of their mother, he gives to an idiot son, James, “ three negroes, Jack, Jim, and Till, and Till’s increase of this my will, to him and his heirs forever”; and he afterwards adds, “Now, my will is, that my sons, Thomas and Elijah, be constituted guardians for my son James, as long as he lives, and, if they, Thomas and Elijah, do live longer than my son, James, the said Thomas and Elijah, are to divide my son James’ estate between them, share and share alike.” The testator died in 1854, and the executors, Thomas and Elijah, proved the will, and the estate of the testator was held by Mrs. Parker until her death, which happened in April, 1858. Between the making of the will, and the death of the testator, the woman, Till, had issue several children, and upon the death of Mrs. Parker, the sons, Thomas and Elijah, took possession of the three slaves, given in the will to James, and also, the issue of Till, claiming them for their idiotic brother. The bill is filed by some of the tesatof’s next of kin, against Thomas, Elijah and James, and some others of the next of kin, alleging that the issue of Till, before the death of the testator, did not go with Till to James, Elijah and Thomas, but, there being no residuary clause in the will, were undisposed of, and subject to distribution and division, between all the next of kin, and to that end, prays for a sale of the slaves. The answers submit the construction to the Court, contending that it was understood by the whole family, that Till’s children were intended as a part of the provision for James, after he should leave the protection and care of his mother.

Gaither, for the plaintiffs.

Avery, Shipp, and Hohe, for the defendants.

Buffin, J.

There have been so many cases holding, that “increase” annexed to the gift of a female slave does notper se, pass her issue, before the testator’s death, as to make the doctrine familiar to the whole profession. But the Court has readily looked to any tjhing in the will tending to show that “increase” was used in a more enlarged sense, and allowed it to control the meaning, if it could control it. We should be quite willing to do so here, if we could; for a Judge may personally suppose that the testator meant the largest gift to his son James. But that is conjecture, merely, formed on collateral circumstances, and not on any thing the testator has said in his will, either directly, as declaring his intention, or indirectly, as declaring a fact from which the intention might be inferred. There is, indeed, in this will, a peculiarity, as it gives “Till’s increase of this my will,” and the Court considered much, whether any thing could be made of that mode of expression. It cannot, we believe. If the word, instead of being of,\ bad been after, it would have been clear enough; and the Court would be quite willing to read the will thus, if any reason could be given for it. One word may be substituted for another, to effectuate an apparent intent. But one word cannot be thus substituted, in order, first, to create an intent, and then to execute it. The increase “ of my will,” is insensible, and must remain so, unless it be supposed that after was left out, and of put in by mistake. But, as was just said, no good reason can be assigned for that supposition, except barely, that after would make sense; and that is not sufficient to show that such was the sense meant by the testator.

The Court, therefore, concludes, though with some reluctance, that the issue of Till, in the testator’s time, are, after the death of the widow, subject to distribution amongst those entitled under the statute of distributions; and, for the purpose of distribution, there may be a decree for a sale by the executors, on the usual credit and an account. The fund must pay the costs.

Per Curiam, Decree accordingly.