Gillis v. Harris, 59 N.C. 267, 6 Jones Eq. 267 (1862)

June 1862 · Supreme Court of North Carolina

59 N.C. 267, 6 Jones Eq. 267

KENNETH GILLIS and wife against WILLIAM HARRIS AND ROBERT HARRIS, Executors.

However deeply impressed the Court may be as to a testator’s particular intention, if he has been grossly negligent in setting forth his purpose, and to declare such to be his intention, would require the Court to ignore the principles which have been adopted to give effect to the intentions of testators, such declaration will not be made.

Cause removed from the Court of Equity of Granville county.

The suit is brought against the defendants, as executors, to recover a legacy of “ three small negroes,” given to the plaintiff, Mrs. Sarah Gillis, in the will of her father, Eobert Harris, who died in the county of Person, on the-day of -■, 1847. The will is dated 1st June, 1842, and probably was written about that time, but the proofs go to fix its 'actual execution on the-day of-, 1847, when it was materially altered by interlineations and additions. As there were many facts brought into the argument, arising from the face of the will, it is deemed advisable to set it out in full:

“ Itém 1. I give to my son, William Harris, one horse, bridle and saddle^ one cow,, and calf, one bed and furniture, 273-J acres of land, whereon he now lives, six negroes, by name,' •Linda, (&c.) and unto him and his heirs forever, which he has already received.

. “Item 2. I give'and bequeath to my son, Lawson- Harris, one horse, bridle and saddle, one cow and calf, one bed and furniture, three hundred acres of land, adjoining, &c., which .he has already received and expended the value to his own use.

“ Item 3. I give and bequeath unto my daughter, Sarah Gillis, one feather bed and furniture, one mare, bridle and saddle, four negroes, by name, Dice, Jenny, Peggy, Jacob j to her and her heirs forever, which she has already received.

“ Item 4. I give and bequeath to my son, Robert Harris, one horse, bridle and saddle, one bed and furniture, seven negroes, (naming them,) to him and his heirs forever, which he has already received.

“Item 5. I leave to my beloved wife, Sarah Harris, the tract of land whereon I now live, during her life, or my widow ; also as many of my negro men and women as she chooses out of the number I leave; two choice horses ; four cows and calves; all my stock of hogs, 15 choice sheep-, (several small articles,) the rest of my black people to be divided after William Harris receives one, the value of Tine, which my sorr, Robert Harris, has, over the number -of his brother William. Also, it is my desire, that my son, William, to have fifty-three dollars, to make his tract of land' equal value with the tract I gave my son, Lawson'; also,.it is my desire,'that my daughter, Sarah Gillis, to have three small negroes more, which will make her number seven, equal with her brothers’ number.

“ I give and bequeath unto the heirs of my son, Lawson Harris, deceased, two negroes, Milly and Jeff, to them and their heirs forever.

“ Item. I give and bequeath unto my son, Robert Harris, the tract of land whereon I now live, containing 600. acres, after the death or marriage of my wife, to him and his heirs forever ; also, the negroes, which I leave her, to return to my estate at her death or marriage.

“I give and bequeath unto my daughter, Sarah Gillis, the tract of land whereon my brother, Overton Harris, lived, containing 150 acres, to her and her .heirs forever. My other two tracts of land, not mentioned, including the mill tract and the other tract above, containing 640 acres, and all my negroes, not mentioned, to be equally divided between my two sons, William Harris, and my son, Robert Harris, and my daughter, Sarah Gillis, and the heirs of my son, Lawson Harris, deceased, and the rest of my property, wagon, still, &c. It is my desire, that my son, William, shall have thirty acres of land surveyed off from the tract on which I reside, adjoining the tract I have given him, and the balance of the tract to my son, Robert, as before recited.”

The two sons, William and Robert, were appointed executors. There was much litigation growing out of this will, first, on an issue of devismit vel non, then as to the construction in respect of the manner of dividing the residne with Lawson’s children — then this suit was brought, alleging a general waste and rnal-administration, which pended in that shape several terms, but, by consent of the parties, the claim was narrowed, to the legacy of “ three small negroes,” given in the 5th item of the will. This claim is resisted, on the ground, that this legacy had been paid and satisfied by the conveyance of negroes to the children of Mrs. Gillis, in the life-time of the testator. This conveyance was by a bill of sale, dated November 7, 1845. The effective words of this instrument, are, “ Know ye, that I, the said Robert Harris, for and in consideration of the love and affection which I have and bear unto my beloved daughter, Sarah Gillis, of the State of Georgia, Gass county, and for divers other good causes and considerations, me hereunto moving, have given and granted, and by these presents do give and grant unto the said heirs of the said Sarah Gillis, one negro woman, named Lizzie, Eas-ther Susan, William and Thomas, and all her increase hereafter,” with a clause of general warranty of title. The facts, as gathered from the depositions, in regard to these slaves, are, that Lizzie, the mother, liad been accused, and taken before a magistrate for burning a tobacco barn, and the charge was compromised by the master’s consenting to send the woman out of the State. She was first sent a short distance info Virginia, and then she and her three children were put into the hands of Daniel Gillis, one of the children of Sarah, with the bill of sale, and carried to Cass county, Georgia, where the family resided. There was much testimony as to the intention of the testator in making this conveyance, the effect of which, is mentioned in the opinion of the Court. The case was heard upon bill, answer, exhibits and proofs.

Graham, for the plaintiff.

Miller, for' the defendants.

PeaesoN, C. J.

We are deeply impressed with the conviction, that if the testator could now be asked, “ Was it your intention, in addition to the four negroes which you gave to. Mrs. Gillis, and the four others which you gave to her children, also, to give her three small negroes by your will ?” the answer would be, “ that was not my intention ; for my object was to make all my children equal.”

If, by the application of the principles of law, which have been adopted for the purpose of giving effect to the intention of testators, there should be a failure to give effect to the intention, in this particular instance, the reply is, it must be ascribed, not to any defect in the principles of law, but to the unaccountable neglect of the testator.

Assume, as insisted. upon on the part of the defendants, that the will was written and signed in 1842, the day of its date: If. it was the intention of the testator, by his deed of gift in 1845, of four negroes to the children, of Mrs. Gillis, to satisfy the legacy to her of “ three small negroes,” it was neglect, on his part, not to have that fact set out in the deed. Again ; if such was his intention, he was guilty of the most unaccountable neglect in 1847, when the paper was in his presence, formally attested by two witnesses, for the purpose of giving it legal effect, in not then revoking the legacy of “ three small negroes” to his daughter, on the ground, that he had made her equal to her brothers by the gift to her children.

Law is made for the vigilant and not for the negligent, is a maxim which may be applied as well to those who are giving away property, as to those who are seeking to acquire it. In our case, it was the neglect of the testator not to give evidence of his intention, and there is no ground on which it can be presumed. The gift, which is insisted upon as a satisfaction of the legacy, was not of three small negroes, but of foivr negroes, one of whom was a grown woman, and the gift was not to the daughter, but to her children, and if parol evidence were competent to show the intention, there is no evidence that, at any time, the testator declared that the intention was to satisfy the legacy by this gift. In Howze v. Mallett, 4 Jones’ Eq. 194, the testator required the legatee to admit, expressly, in writing, that the money was received in satisfaction of the legacy.

The conclusion that the legacy was not adeemed by the gift, is irresistable on principles well-settled — putting the case on the supposition that the paper was signed by the testator in 1842, (as to which, there is no proof). On the supposition, that the paper was not signed until after the gift, there is no ground on which to base an argument in support of an ademption. So, taking it either way, the defendants have failed to establish the allegation, that the legacy is satisfied.

There must be a -decree that the plaintiffs are entitled to the value of the three small negroes to be fixed, two years after the death of the testator, with interest from that date; as to which, there wilThe a reference.

Per Cueiam, Decree accordingly.