Carver v. Oakley, 57 N.C. 85, 4 Jones Eq. 85 (1858)

June 1858 · Supreme Court of North Carolina

57 N.C. 85, 4 Jones Eq. 85

HENRY CARVER, Ex’r., and others against SAM’L D. OAKLEY and others.

It is a general rule, that where property is given to a class, as many of that class will be included as can be, without doing violence to the instrument.

Where, therefore, an estate was given, by will, to such grand-children of A, as should bo alive when B died, and B died in the life-time of the testator, it was Held that the grand-children born after the death of B, but in the life-time of the testator, take under the bequest.

Cause removed from the Court of Equity of Person county.

The bill was filed by the executor of the will of Josias Carver, senr., and certain legatees therein named, to obtain a construction of the following-clause of the will: “ I lend unto my daughter-in-law, Betsjr Carver, widow of mjr deceased son Josias, during her life or widowhood, the following property, that is to say, (describing several slaves,) and at her death, or marriage, I direct the same to be equally divided between the grand-children of my said deceased son, Josias, or such of them as may be living, and in being at that time.” Elizabeth Carver died in the life-time of the testator, leaving her surviving the following grand-children of the said Josias, jr., to wit, Martha J. George, Elizabeth Oakley, Elizabeth E. Eenn, Jas. B. Hutcliius, Nancy Hutchins, John Hutchins, Martha Carver, Elizabeth Carver, Sarah Carver, James Carver, John Paul Carver, Sarah J. Carver and Elizabeth Carver, jr., who were all in being at her death, and at the death of the testator. These are plaintiffs with the executor. Subsequently to her death, there were born the following persons, to wit, Samuel D. Oakley, Thomas Eenn, William Hutchins and Josias Carver, junior, grand-children of the said Josias Carver, jr., who were all in being at the death of the testator. The executor sets forth that the plaintiffs, to wit, the grand-children of Josias Carver, born, and in being, previously to the death of Mrs. Betsy Carver, claim the wdiole of this bequest, while the defendants, those other grand-children, born subsequently to death of the intended first taker, Betsey Carver, contend that they are entitled to participate therein. They were called on to appear and interplead, so that the executor might be protected by a decree of this Court in paying over the said legacy.

The defendants, the younger grand-children, answered, not denying the statements of the bill, but insisting on their rights to share equally in the bequests aforesaid.

The cause was set down on bill, answer and' exhibit, and transmitted.

J. U. Bryan, for the plaintiffs.

No counsel appeared for the defendants in this Court.

Rattle, J.

We think that there cannot be any reasonable doubt as to the proper construction of the will of the testator, Josias Carver, sen. The testator certainly supposed that the intended legatee, for life, Betsey Carver, would survive him, and the slaves given to her, for life, were, at her death, or marriage, to be equally divided between such of the grand-children of his deceased son, Josias Carver, jr., as might be then living. The death of Betsey Carver, in the life-time of the testator, removed her life estate out of the way, and the grand-children of Josias Carver, jr., must take immediately upon the death of the testator, just as if no previous life estate had been mentioned in the will. That being the period for the division of the property, all the grand-children, who were then living, are entitled to a share in it. It is a well established rule of construction, that when property is given, by will, to a class, as many of the class shall be included in the benefit of the gift as can be, without doing violence to the language of the instrument. Here, the period of division among the grandchildren, as a class, is the death of the testator, and we think all must be embraced, who were then in being. Let a decree be drawn for a division according to this opinion.

Per Curiam, Decree accordingly.