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.

TeBtator by one c’.ause in bis will gires to bis wife all bis property of every species whatever, during her life.

Another clause, says that any children born during his marriage with his said'wife shall be co-equal heirs withber. 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 Rebecca W. Turner, the widow of the late Janies A, Turner, and states that an order of sale of a tract of land belonging to certain infants had been made by the Court of Equity for Granville county, and at the sale made in pursuance thereof, the plaintiff's late husband was the purchaser thereiff, that the sale has been confirmed, and the purchase money paid by Edward GK Cheatham, Ms executor. So much of the will of James A. Turner as relates to this suit is as follows: “ I give and devise to my beloved wife Rebecca W. Turner, all my 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 Rebecca, 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 Rebecca — that is to say, should there be one child, he • or shei 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 he.irs in fee simple forever. Included in the above devise is any and all species of property which may accrue to me before or after my death, either by inheritance, gift, or bequest,” The will was made in May, 1862, and the testator died in that year. Thera were no children born of the marriage. The suit is against the infants who were ow-nere of the land sold and the heirs of James Turner., And the prayer is for a conveyance of the land to the plaintiff in fee.

Manly, 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 his effects of every description. r:~

After sweeping-up as it were and including every thing, 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 con-, 'tingeneies, 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 case theia should be one, two, or three.

The wife appears to be a primary object of .care with the testator, and we can not suppose, that while he desired, m the event of having a child born to him, to give her one half of his estate absolutely, he was umvilling to- give her anything, in case he had cone.

"Upon 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 complain - ant, in fee.