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 dissentfrom hor husband’s will, by Whicj^his estate was made acomuna fund for fcho support of herself and hN children, until her death or marriage, wheu it was to bo 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.

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

If property oo given by will to iba testator's widow for life, with remainder over, and the widow dissent from the will, th>¡ remainder immediately vesis in possession. *

The case of Adams vs. Gillespie, 2 Jones’ Eq,, 244, cited and approved.

This .cause was transferred to this Court for trial from the Court of fkjuitjr of Forsyth county.

The bill wan filed by the plaintiff as executor of A. J. Stafford, and prayed the advice of the Court as to the eon-strnction and execution of Ins will.

The material parts of the will are :

“ 3dfy. ft is my desire that all stieh personal property as may not be essentially necessary for the use of my family, he sold at public sale, and my lots in Winston, except the one whereon l now reside, if there can be anything like a fair price obtained ; if not, to be rented. The other lands, to wit: 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 unmaa-•ageablc, then to be sold and the money put? at interest for the benefit of my family.

5thly. I wish all such property to be. left with my family that they may think necessary to carry on the business, and nothing to be sold except such as may be of little use and the ftimily make out without it.

Gtlily. ■ 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 m.y surviving children, te share and share alike. It is my wish that my children that are too small 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.

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

8thly. It is my will and desire that" as long a* my beloved wife remains my widow to be well provided for and never to want any of the necessaries of life, if there is a sufficiency to make her and family comfortable, but not by any means to be extravagant.

9till} . It is my will that my daughters receive, at theft 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, he either sold or divided as may be agreed upon by my children, to share and share alike ; and if any of them should die leaving heirs, for them to rec.eire the 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 has had dower assigned her. ■ The testator’s personal property, consisted of cash, on hand, securities for money, seven negroes oí unequal ages and values-, and various other articles.

The defendant, f. M. Stafford, is the administrator ®f one of the deceased children, and the defendant, Cornelia, is the administratix of the other. 1

Phillifti for the plaintiff.

No counsel for the defendants in this Court.

Battle, 3.

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 scope 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 he 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 equal share^

There was another' event which might happen, and which,- if it did occur, would as effectually .break up his family arrangement, as either of the other two ;. but which he seems not to have anticipated, and therefor® made no provision against it. This was the dissent of th@ widow, and her claiming her-share of the property, as if he had died intestate. The e’ffect of this upon the dispositions made for tíis children in the will, must, alter the assignment of her dow-er, and the giving her an equal part with the children, of the personal estate, be the same as if she had died or married. The executors must therefore, proceed .to dispose of the property as directed by the tenth clause of the will. The administrator and adrnin-istratix 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 slave to a wife"for life-with remainder, the dissent of the widow will hasten the 'vesting in possession, of the remainder.. .

Notj. — Th« decree declares that “ upon the dissent of CtrneliaS. Stafford, the widow of the testator, the persona! estate in the hands of ths plaintiff a? executor, became subject to distribution among the widow and next of kin of the testator, as if he had died'intestate." And it is> adjudged and decreed, that, • “ the plaintiff pay her. one ninth part of said estate, remaining after paying the. debts of the testator and the costs 'and charges of administration — to be held by her in her own right, and one other ninth part to be held by her as administratix,” &c. And the cause is retained with liberty in any of the parties to apply for fv.rf.her directions therein.

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