Turner v. Kittrell, 60 N.C. 39, 1 Win. 39 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 39, 1 Win. 39

REBECCA W. TURNER against ROSA KITTRELL and others.

... Testator by one clause in his will gives to his wife all his property .of every species whatever, during her lile.

Another clause says that any children bora during his marriage, with . his said wife shall -be co-equal heirs with her. The testator dies without having had any children born during his marriage.

The wife takes an absolute estate in all his propeoty. ' .. .

The bill is filed by Eebecca W. Turner, the widow of the late James A. Turner, and'states that an order of sale of á tract -of laud belonging to certain infants had been' made by, the Court of Equity for Granville county, and at the sale made in pursuance thereof, the plaintiffs late husband was the purchaser thereof, that the sale has been confirmed, and the purchase money paid by Edward G. Cheatham, his executor. ' So much of the will of James A. Turner as rer lates to this suit is’ as follows : “ I give and devise to my beloved'wife Eebecca W. Turner, all xny property of every species whatever, to'have and to hold for and during her natural life.” ■ *

“ It is my will .and desire that any child or children which may be born during my coverture with my said wife Eebecca, or any child or children which may be born within the time prescribed by law, after -my decease, shall be- co-equal heirs with my wife Eebecca — that is to.say, should there be one child, he or she shall he entitled to one half of my property — if two children, one third to each, and one third to my wife — to be held by them and their heirs in fee simple forever. Included in the above devise is any and all species ofiproperty which may accrue to me before or after flay death, either by inheritance, gift, or bequest.” The'will was made in May, 1862, and the testator died in that year. There were no children born of the marriage. - The suit is against the infants who were owners of the land sold and the heirs of James Turner. And the prayer is for a conveyance of the land to the fdaintift in fee.

MaNlx, J.

The rights of the complainant depend on the proper construction of the will of her husband James A. Turner. After an attentive consideration of the whole body of the instrument, we are of opinion, she is entitled to a conveyance of the entire parcel of land in fee.

This construction is necessary to avoid an intestacy in ■ respect to the most important part of his estate, and to give effect to what seems to be the testator’s manifest intention. The language of the will discloses a careful purpose to embrace in its bequests all bis effects of every description.

After sweeping up as it were and including every thing,1 we can not suppose that he would make so incomplete a disposition of it, as to leave it entirely-undisposed of in a contingency the most probable of those then in his mind.

He sets out by disposing of a life estate in his property of every kind. This he gives to his wife; and then turns to the task of carving out absolute estates in-certain contingencies. The language of the will is peculiar. “ It is my will and desire, that any child or children that may be born during my coverture, shall be co-equal heirs with my wife.” This secondary disposition of his estate seems to be|based upon the idea that the wife was an heir in any event, aud proceeds to provide for children in ease theie should be one, two, or three.

The wife appears to be a primary object of care with the testator, and we cannot suppose, that while he desired,- ia the event of having a child born to him, to give her o:te half of his estate absolutely, he was unwilling to give hsr anything, in case he had rone.

TJpon*the whole we think an intention is sufficiently apparent to give the wife an absolute estate in all his property, in the event the testator should have no children born to him from the marriage : and do so declare.

There should be a decree for a conveyance of the entire parcel of land described in the pleadings, to the Complainant, in fee.