Wilson v. Stafford, 60 N.C. 103, 1 Win. 103 (1864)

Dec. 1864 · Supreme Court of North Carolina

60 N.C. 103, 1 Win. 103

THOMAS J. WILSON, Executor of A. J. STAFFORD, deceased, vs. CORNELIA S. STAFFORD and others.

A widow's dissent from her husband’s will, by which his estate was made a common fund for the support of herself and his children, until her death or marriage, when it was to be divided equally among his children, has the effect of making the personal property divisible among her and the children as if he had died intestate.

The administrator of a child, who has died since the testator, is. entitled to the share of the deceased child.

if property be given by will to the testator's widow for life, with remainder over, and the widow dissent from the will, the remainder immediate! y vests in possession ■ •

Thu case of Adams vs. Gillespie, 2 Jones’ liq , 244, cited and approved.'

This eause was transferred to this Court for trial from the Court of Equity of Forsyth county.

The bill-was filed by the plaintiff as executor of A. J. Stafford, and prayed the advice of the Court'as to the construction and execution of his will.

The material parts of the will are :

tc 3dly. It is my desire that all such personal property as may not be essentially necessary for the use* of my family, be sold at public sale, and my lots ‘in Winston, except the one whereon I now reside, if there can be anything like a fair price obtained ; - if not, to be rented. The other lands, to pcit: the Britz place and the Wilson field, to be kept for the benefit of the family, if thought best.

4thly. It is my will and' desire that my family carriage, with the harness, be kept for the use of the family ; also two horses, farming tools, &c.also my negroes,to either be hired out or worked on the plantation as thought best; but if either of them should become insolent, or unmanageable, then to be sold and the money put at interest for the benefit- of my family, •

othly. I wish all such property to be left with my family that they may think necessary to carry on tie business, and n'othing to be sold except such as may be of little use and the family make out without it.

Btlily. After this provision for my dear wife and family she should think best and proper to marry again, then, and in that case, I desire that all my property, either real .or personal, shall be-sold or divided equally between, my surviving children, to share and share alike. It is my wish that my 'Children that are too ¡imali to be put at some business be left with my wife until they are old enough to be put at business of some kind, and not be permitted to grow up in idleness.

Ithly. I desire,' if my estate should appear sufficient,* at the age oí twenty-one, my sons shall receive five hundred dollars, if they are steady, &c.

Sthly. It is niy will and desire that as long as my'beloved wife remains mjr widow to be well provided for and never to want any of tbe necessaries of life, if.there is a sufficiency to make her and family comfortable, but net by any'means lo be extravagant.

9till) . It is ray will that iny daughters receive, at their marriage or full age, the like sum of $500, &c.

lOthly. My desire is that at the marriage of my dear wife, or her death, that all of my money or property of every kind, be either sold or divided as may be agreed upon by my children, to share and share alike; anu if any of them should die leaving heirs, for them to receive 4he share or shares of their deceased parents.

The testator died in 1862, leaving his wife and eight children surviving him. Two of the children have'since died under age; and without issue. The widow dissented from the will, and lias had dower assigned her. The testator’s personal property consisted of cash on hand, secu-. rities for money, seven negroes of unequal ages and values, and various other articles. " \

The defendant, §. M. Stafford, is the administrator of one of the deceased children, and the defendant, Cornelia, is .the administrate of the other.

.Phillips for the plaintiff.

No counsel1 for the defendants in this Court.

JBastle, J.

The main, if not the only difficulty in the will which is now presented to us for construction, has arisen from the dissent of the widow from it.. The whole. scopp of the will prior to the tenth item, in providing for the testator’s family, is manifestly framed upon the supposition of the continued existence of his wife, as a widow. He foresaw that her death or marriage would entirely derange his plans, and ho therefore declares in the tenth item, that should she die or-marry, his desire was, that all of his .money, and all of his property' of every kind, ■ should either be sold or divided, as might be agreed upon by his children, each taking an eqúal.share.

There was another event which might happen* and which, if it did occur, would as effectually break up ’hi» family arrangement, as • either of the other two ; hut which lie seems not to have anticipated, and therefore made no provision against it. This was the dissent of the widow, and her claiming her share of tlje property, as if he had died intestate. The effect of this upon the dispo-«itions made for his children in the will, must-, alter the .assignment of her dower, and the giving her an equal part with thejchildren, of the personal estate, be the same as if she had died or married. The executors must there-' fore, proceed to dispose of the property as directed by the .tenth «lause of the will. The administrator and administrate: of the children who have died since the death of their father, will be entitled to their respective shares of the personal estate. The case of Adams vs. Gillespie, 2 Jones’ Eq., 244, shows that where there is the legacy of a «lave to a wife for life, with remainder,' the dissent of the widow will hasten the vesting in possession, of the remainder.

The plaintiff may have a decree in-accordance with this opinion.

Note. — Tiv decree <h>cl.uv.< t.int; upon the di.--ir.it of Cornelia ¡3. Ktaf- . ford, the widow of the Uetator, ilia personal ««.ale italbu hands of the plaintiff as executor, i ocams subject to distribution .among the widow and M-xt of kin of t-he testator, as ij he had died intestate." And it I'-t adjudged and decreed,, that “ the- p!aint!ff pay her one ninth part-of said estate, r< training after paying the debts of the testator and the costa and charges of administration — to ho held by her in her own right, and or.e other ninth part to bo held by her a* administratis,” &o. And the cause’is retained with liberty to any of the parties to apply for further directions therein.