Thompson v. Mitchell, 57 N.C. 441, 4 Jones Eq. 441 (1859)

Aug. 1859 · Supreme Court of North Carolina

57 N.C. 441, 4 Jones Eq. 441

JOSEPH THOMPSON, Executor, against JOHN MITCHELL and wife and others.

A limitation by will of slaves and other property to one, for her support during her life, “ and what remains at her death, to be sold and equally divided among the heirs of her body,” vests the proceeds of the property sold, by the rulo in Shelley’s case, in her children, and the descendants of such of them as may have died, as purchasers.

Cause removed from the Court of Equity of Alexander county.

This bill is filed by the executor of Thomas Lackey, seeking the advice of the Court upon certain bequests in his will. That portion of the will necessary to a proper understanding of the question, is as follows : “3rd. I will and bequeath to my beloved wife, Margaret Lackey, as much of my plantation, with the improvements, as will support her her life-time. Also her own negroes that came by her, and her own beast, and so much household and kitchen furniture as will be necessary for her, with as much of my stock of cattle, hogs and sheep ; and, at her decease, what remains, to be sold and equally divided among the lawful heirs of her body.”

One of the questions raised by the executor is, whether the words “ what remains, to be sold, &c.,” applies to the slaves as well as the other property mentioned in that connection.

Margaret Lackey, the widow and legatee above mentioned, made a will, in which she bequeathed all her property to three of her daughters, Amy Thompson, Elizabeth Hines and Margaret Mitchell, and the husbands of these legatees insist that by virtue of the recited clause, in the will of Thomas Lackey, his wife, Margaret, took an absolute estate in the negroes and other property, and upon the sale, after her death, the whole proceeds passed to them.

There are other children of Mrs. Lackey, and the children of several, whose parents died in her life-time, but after the death of Thomas Lackey. These others, the surviving children of Mrs. Lackey, insist that the construction contended for by the three daughters, Mrs. Thompson, Hines and Mitchell, is wrong, and that only an estate for life vested in Mrs. Lackey, under the will of her husband, with a limitation over to all her children that may be alive at her death.

The children of the deceased children of Margaret Lackey, insist upon the latter construction of the will, with this difference, that they claim to participate in the division as representing their deceased parents.

The executor feeling that it would not be safe for him to assume either of the above constructions, of the said will, to be correct, and to act upon it as such, calls upon the said several parties to interplead, and let the matter be settled, for his protection, by a decree of this Court.

The answers of the defendants reiterate the several views as attributed to them by the plaintiff.

The cause was set down on bill, answers and exhibits, and sent to this Court by consent.

Hoyden, for the plaintiff.

Mitehell, for the defendants.

Pearson, C. J.

The clause of the will submitted to us for construction, is entire and unbroken, and we can see no ground upon which the words, “ what remains, to be sold, &c.,” can be so detached as to be referable alone to the stock of cattle, hogs and sheep, and not be extended to the negroes and other property, given in the clause by words making a continuous sentence ; it follows, that the negroes vested in Margaret Lackey, subject to the legal effect of the direction, “ what remains, (at her death) to be sold and equally divided among the heirs of her body.”

We are of opinion, that the words “ heirs of her body,” as here used, are words of purchase, and not words of limitation, according to the rule in Shelley’s case ; because, by reason of the direction, “ what remains, to be sold and equally divided,” the persons indicated as heirs of her body, do not take the same estate in like manner, as they would have taken, had she taken the absolute estate. It follows, that she took an estate for life, with a limitation over to the heirs of her body as purchasers. Taken in this sense, heirs of her body, means her issue, that is, her children and the descendants of such of them as may have died, who would represent and stand in place of their deceased parent. It must be declared to be the opinion of this Court, that under the limitation over, the children of Margaret Lackey, living at the death of the testator, Thomas Lackey, took a vested interest under the limitation over as purchasers, which, upon the death of any of them, devolved upon their personal representatives.

As none of her children died before the death of the testator, leaving issue, it is not necessary to enter upon that question.

Per Curiam, Decree accordingly.