Moye v. Moye, 58 N.C. 359, 5 Jones Eq. 359 (1860)

June 1860 · Supreme Court of North Carolina

58 N.C. 359, 5 Jones Eq. 359

ALFRED MOYE Ex'r AND ANOTHER against MOSES L. MOYE AND ELBERT MOYE.

The word “increase” includes children, grand-children, &c., issue of the body; where, therefore, a will gave a female slave and her child to A, and then gave the woman and her increase over after the death of A, it was Held that this bequest over, included the child mentioned in the first bequest.

Where a testator bequeathed one of the children of a female slave to each of the children of A, and in case there should be of the children of the said slave more than was sufficient to answer the said specific bequests, then the residue to two, it was Held that the children of A were entitled to choose from among the increase of the woman what slaves they would have, before the residue passed to the two.

Cause removed from the Court of Equity of Pitt county.

The bill is filed by Alfred Moye, executor of James "VT. Moye, praying a construction of certain clauses in the will of one Cleodicia Nettles.

The controversy arises out of the following clause of the said will. “Item 3d. I leave in trust to my brother, Alfred Moye, for the use of my nephew, James W. Moye, negro woman, Jane, and her child Laurence, and at the death of the said James, I give the said Jane and her increase to such children of the said James as may survive him, as follows, to each child one negro of the increase, should there be sufficient, and the excess, if any, I leave to be divided between my nephews, Moses and Elbert Moye, and in case the said James leaves no lawful children, I leave them all to my nephews above mentioned.”

The executor assented to the legacy, and delivered the slaves, Jane and Laurence, to the plaintiff, as trustee. James W. Moye died shortly thereafter, leaving a will of which he appointed the present plaintiff executor, and leaving only one child surviving him, the complainant, Abram D. Moye, who is an infant under the age of twenty-one, and the plaintiff, Alfred Moye, is his guardian?

The slave, Jane, lias had the following increase, since the death of Cleodicia Nettles: Henry, Cora, since dead, and Haywood.

The plaintiff claims to hold the slave Laurence, in his capacity of executor, as part of the estate of his testator. He al’so claims that he has the right as guardian of the said Abram D. Moyo, to elect out of the increase of the said Jane, bom since the death of the said Cleodicia, such child as he may deem most advantageous to the interest of his ward.

The defendants contend that the boy, Laurence, was only bequeathed to James W. Moye during his life, and is included in the bequest of the increase of the said Jane, after the death of the said James W. Moye, to the defendants. They also contend that the plaintiff, as guardian of Abram D. Moye, lias no right to elect which one of the children born after the death of the testatrix, he will take, but that by the terms of the will, Laurence became vested in the said Abram D. Moye, and that he, therefore, is the one indicated to fulfill the bequest, but if this is not so, then that lie must take the one first born after the death of the testatrix, Cleodicia, to wit, Henry.

Cause set for hearing on the bill, answer and exhibits, and sent to this Court.

Donnell, for the plaintiff’.

No counsel appeared for the defendant in this Court.

PeaesoN, C. J.

The woman, Jane, had no child born between the making of the will and the death of the testatrix, so the question presented in the class of cases to which wo were referred on the argument, does not arise. We have as an open question, does the word, “increase,” in the limitation over after the death of James Moye, include the child “Laurence,” or is it confined to the children bom after the death of the testator ?

The ordinary sense of “ increase,” in respect to a woman, is her children grand-children, &c., issue of her body, descendants, and we do not think the fact, that one of her children, Laurence, is previously mentioned, sufficient to show that the word, “increase,” was not afterwards used in- its ordinary-sense, so as to include that child as.-welLas all other children, and grand-children, &c., fo'r, when the testatrix came to make • the limitation over, the word'.“ children”'was not appropriate to convey her meaning,- and she-adopted the-word “increase,” in the sense of issue of her body, descendants* to-save the trouble of writing “ children, grand-children,-, great-grand-children ; as the taker of the first estate, might have lived long enough to allow time for her,to;. have numerous descendants, which the testatrix seems .to have -considered .probable.

This construction is supported and,' in .fact, made necessary,, by the last limitation over “in case of-the death of James, without a child, Ilect/oe them all to mynephews above named.” “ Them all,” cannot be restricted. to . the children of Jane, born after the death of the testatrix, .but must include Jane and Laurence also-; in other words, Jane and her family, and the subjects of the first limitation, .must be the same as those disposed of by the last.

We think the plaintiff, Abram Moye,.is entitled to the woman, Jane, and to one of her children-,, of which he is to have choice; he is entitled. this preference, .because the first limitation is given to him, showing,him,, to be the primary object of the bounty.of the testatrix, and, the defendants are introduced as secondary, .and are„only to have.what is left after he gets his-portion..

The cost will be paid, by the executor out of the fund, so as to bear equally upon all, as all were interested in having the question settled, and it presented a .fair matter of doubt.

Lee Cueiam, . Decree accordingly..