Williamson v. Williamson, 58 N.C. 142, 5 Jones Eq. 142 (1859)

Dec. 1859 · Supreme Court of North Carolina

58 N.C. 142, 5 Jones Eq. 142

GARY WILLIAMSON AND OTHERS against DEMPSEY WILLIAMSON AND OTHERS.

The act of 1844, (11 9 th cb. G sec., Rev. Code,) declaring as of what time a will shall speak, was Held to give no force to the subsequently passed act in regard to the increase of slaves, (Rev. Code, ch. 119, sec. 27,) so as to pass the increase of slaves under a will made before this latter act was passed, although the testator died after it wont into effect.

PetitioN to reliear this cause,' which was decided at December Term, 1858, (see 4 vol. Jones’ Eq. Rep. 281.)

The petitioners point out as erroneous that part of the decree, which passed at the said term, in which it was declared that the increase of the slaves bequeathed to them .in the 3rd, 4th and 5th clauses of the will of Thomas 'Williamson, which were born during the life of the said Thomas, did not pass to the petitioners, but fell under the residuary clause. They urge, that it appears, that Thomas Williamson died on 23d of October, 1856, and that by the 6th section of 119th chapter of the Revised Code, it was declared that:

“ Every will shall be construed with reference to the real and personal estate comprised therein, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by will,” and by the 27th section of the same chapter, it is declared that:

“ A bequest of a slave with her increase, shall be construed to include all her children born before the testator’s death, unless a contrary intention appear by the will.”

They urge that the said will was signed and published on 26th of August, 1852, and that there is nothing on the face of it, that forbids its being construed as if it had been executed on 23rd of October, 1856, which was after the said 27th section, went into effect.

Strong and Dortch, for the plaintiff’s.

Miller, Lewis and Foiole, for the defendants.

Battle, J.

When this case was before us twelve months ago, (see 4 Jones’ Eq. Rep. 281,) the effect which it has been since supposed, that the act of 1844, ch. 88, sec. 3, (Revised Code, ch. 119, sec. 6,) ought to have had upon the construction of the will mentioned in the pleadings, was not brought to our attention in the arguments then submitted. We have on that account been gratified that the cause has been presented to us again upon a petition to rehear it, and that the question which was omitted to be raised on the former occasion, has now been fully and ably argued by the counsel on both sides. Aided by the light which has been thrown upon the subject by these arguments, we think that we can show, conclusively, that the act of 1844, above referred to, has no bearing upon this point in the case, and that, consequently, the former decision must stand.

The act of 1844, ch. 88, sec. 3, declared that “ every will shall be construed with reference to the real and personal estate comprised therein, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.” This act was held, in the case of Battle v. Speight, 9 Ired. Rep. 288, and again in Williams v. Davis, 12 Ired. Rep. 21, to be prospective only, in its operation, and not to affect the construction of any will made prior to the time when it went into effect, though the testator may have died afterwards. The reason given for the decision in the case, first above mentioned, was that the Legislature could not have intended to change the meaning and legal effect which the language of the will bore at the time of its inception. Hence, the conclusion was, that the act was intended to apply only to wills thereafter to be executed or published. Upon such after made or published wills, it was manifest that the act of 1844 could not alter the rule of construction w'hich had prevailed before, (see Love v. Love, 5 Ired. Eq. 201, and other cases,) that in a bequest of a negro woman and her increase without any explanatory words, the legatee could not take a child of the woman born after the date of the will, and before the testator’s death. Indeed, the act would seem to make the application of the rule clearer, because the will, speaking and taking effect immediately before the death of the testator, could not embrace any increase of a female slave born before that. time.

Such being the operation of the act of 1844, if it have any operation upon the case, at all, the counsel fqr the petitioners to rehear, are necessarily forced to rely, for the support of the construction for which they contend, altogether upon the effect of the act contained in the 27th section of the 119th chapter of the Revised Code, which says that “a bequest of a slave with her increase, shall be construed to include all her children born before the testator’s death, unless a contrary intention appear by the will. Now, it will be seen that upon the first hearing of this'cause, we did consider the question of the effect of this enactment, and decided that it could not apply to the construction of the will under consideration, because it was made and published before the act went into operation. It is obvious that we could not have decided otherwise without a direct violation of the principle adopted by the Court in Battle v. Speight, and reasserted in the case of Williams v. Davis to which we have heretofore referred. That principle is, that a statute which purports to change a rule of construction then applicable to devises and bequests, will not affect wills made before the time of its enactment, though the devisor or testator may not have died until afterwards.

PeR Cceiam, Petition dismissed.