Sims v. Smith, 59 N.C. 347, 6 Jones Eq. 347 (1863)

June 1863 · Supreme Court of North Carolina

59 N.C. 347, 6 Jones Eq. 347

BENJAMIN T. SIMS, Adm'r., against BENJAMIN SMITH and others.

The word 11 when,” like the words “at” and “if” applied to a legacy of personalty, makes the gift contingent; but the superaddition of the words, “ equally to be divided," (when there are several legatees,) showd that the the words, when, &c., were only used to designate the time when the enjoyment of the legacy was to commence, and would not prevent it from vesting.

Cause removed from the Court of Equity of Franklin county.

The bill'was filed by the plaintiff, Sims, as administrator of his late wife, Sally Ann (formerly) Smith, for partition of slaves bequeathed to herewith the other defendants, by the will of Joseph Smith, and the only question in the cause depends upon the construction of the following clauses in said will: “I give to my son, Joseph Smith’s children,now living, that is, Benjamin Smith, and Adam Smith, the land whereon I now live, on the east side of Mill creek, to be equally divided between them and their heirs forever,” reserving a life-estate therein to Joseph Smith, their father. * * * “ And I also give the following negroes to my son, Joseph N. M. Smith’s five children, nowliving, viz: Sally Ann Smith, Martha Smith, Benj. Smith, Abner Smith and Jos. Moseby Smith, when the youngest arrives to lawful age, the following negroes and their increase, Harriet, &e., (twelve in number, naming them,) to be equally divided between them and their heirs forever, reserving, as aforesaid, to my son, Joseph N. M. Smith, in the land, including the mill and negroes, during his natural life.” The bill alleges, that all the above grandchildren were living at the testator’s death, and that Sally Ann Smith intermarried with the plaintiff, and died about seven years after the death of the testator, in the life-time of her father, and before Joseph Moseby Smith, who was the youngest child of the testator, arrived at the age of twenty-one. The bill alleges, that on the death of Joseph N. M. Smith, his son, the defendant, Benjamin, became his representative, and took charge of the slaves, and held them for himself and the other children of Joseph N. M. Smith, exclusively of the plaintiff, as representative of the said Sally Ann, his late wife, and that he denied the plaintiff’s right, upon- the ground, that Joseph Moseby Smith, the youngest, was not of age when said Sally Ann died. This fact is admitted in the bill, but the plaintiff insists that the legacy was vested on the death of the testator, and that the age of the youngest was fixed for division between them, subject to the life-estate of their father.

The prayer is for a partition of the slaves. The defendants demurred to the bill, and there being a joinder in demurrer, the cause was set down for argument an'dsent to this Court.

B. B. Moore, for the plaintiff.

No counsel, for the defendants.

Battle, J.

The only question presented for our consider-. ation, depends upon the proper construction of the following clause of the will of Joseph M. Smith : “ I give the following negroes to my son, Joseph N. M. Smith’s five children, now living, viz : Sally Ann Smith, Martha Smith, Benjamin Smith, Abner Smith and -Joseph Moseby Smith, when the youngest arrives to lawful age, the following negroes and their increase, to wit: Harriet,” &c., “ to be equally divided between them and their heirs forever, reserving, as aforesaid, to my son, Joseph N. M. Smith, in the land, including the mill and ne-groes, during his natural life.” The testator, in a previous clause of his will, had given to his two grandsons, Benjamin and Abner Smith, a tract of land, equally to be divided between them, reserving a life-estate therein to their father, Joseph N. M. Smith. Sail}' Ann Smith, after the death of the testator, married, but died before the youngest of the five children of Joseph N. M. Smith arrived at full age, and the question is presented on the claim of her husband, as her administrator, whether the legacy of the slaves is vested, or contingent.

It is conceded that the word, “ when,” like the words “at” or “ if,” applied to a legacy of personalty, ordinarily, makes the gift contingent. Thus, if a negro were given to A, when he arrives at age, with nothing to explain or control the expression, it would be the same as if the legacy were given to him “at” his arrival of age, or “if” he arrived at. age, and should, consequently, he coustrued to be conditional upon his arrival at age. But when it appears from the context, or from the general scope of the will, that the testator intended to designate only the time when the enjoyment of the legacy is to commence, there the legacj7 will he held to he vested. Among other expressions, to which this effect will ho given, is that of “ equally to be divided between them,” where there are several legatees. The law, it is said, always leans in favor of holding legacies vested, rather than contingent, where the clauses, in which they are given, are ambiguous, and the intention doubtful; Stuart v. Bruar, 6 Ves. Jun’r., 529; Litwell v. Bernard, Ibid. 522. In most cases, this expression of “equally to be divided between them,” will apply, as well to the time of enjoyment, as to the gift itself, and hence, in such cases, the legacy will be taken to be vested. In the case now before us, there is nothing to forbid the application of this rule, and the legacy of the slaves must be considered as having vested at the death of the testator, the division among the legatees not to take place until the arrival of the youngest at full age — the whole legacy having been subject to the life of their father; see Guyther v. Taylor, 3 Ired. Eq. 329.

Per CüriaM, The demurrer overruled and the cause remanded.