Pickett v. Southerland, 60 N.C. 67, 1 Win. 67 (1864)

Dec. 1864 · Supreme Court of North Carolina

60 N.C. 67, 1 Win. 67

WILLIAM D. PICKETT and JOHN L. PICKETT vs. DAVID J. SOUTHERLAND AND OTHERS.

A Inquest in these words (after a bequest to A. a daughter of Mary Pickett) “ I give arid bequeath to all the rest of my nieces Mary Pick-rtfs childien that she now has or may hereafter have Maria-and Jim to sh'.ire equaljy, the above negroes to remain in the hands, &c.” Mary Pickett haying, at the time when the witl was made, no other daughter than A. but two sons, is a gift to all file children of Mary Pickett which she then had (except A.) or might at any time thereafter have, whel her in the life time of the testatrix, or after her death. *

The cases of Shin vs. Motley; 3 Jones Eq., 491, and Shull vs. Johnson, 2 Jones Eq., 202, cited and approved.

This cause was removed from the Court of Equity of Duplin county to this Court*for trial.

• Mary Rliodes died ill the year 1832, having, a short time before, made her will, hy which she gave to Mary Jane Pickett, the daughter of the testatrix’s niece, Mary Pickett, some property ; and then bequeathed as follows: “ I give to-all the rest of my nieces Mary Picketts children that she now has or may hereafter have Maria and Jim to share equally, the above negroes to remain in the hands of the manager of my will &c.”

When the will was made Mary Pickett had three children, Mary Jane and two sons. No .others were born during the life of the testatrix ; but, after the testatrix’s death, she had five children, some of each sex.

The words and the punctuation of the will are copied with exactness in the foregoing quotation. .

The plaintifís,0,re the sprvivors of the two sons of Mary Pickett wiio were in existence, when the will was made, and the administrator <i' t'no other, who died after testatrix’s death. They ck.'m the whole of the legacy, on the ground that the word “ nieces ” should bo read as if written niece’s, and the words- “ she may hereafter have” should be construed as if the words “during my life* ■time ” were added. The defendants arc the children of Mary Pickett, born after the death of the testatrix. The sons claim that the legacy should be divided among all the children of Mary Pickett: the daughters claim the whole legacy, by force of the word nieces. ' Mary Pickett was the niece of the testatrix,, and is so described in a pre-•céíling part of the will.

tiirong for the plaintiffs.

No counsel for the defendants in this Court.

PjsarsoN, 0. J.

By its proper construction, the clause in the will of Mary Rhodes, which lias given rise to this controversy, should read, “ I give and bequeath to all the rest of the children of my niece, Mary Pickett, as well those she may hereafter have, as those she now has, two slaves, Maria and Jim, to share equally.” >

This removes all obscurity : and by it, all of the children (except Mary Jane) as well males as females, and as well those born after the death of the testatrix as those born before, are entitled to a share, Shin vs. Motley, 3 Jones Eq., 491. Shull vs. Johnson, 2 Jones Eq., 202, are directly in point: and the question in regard to after born children, when there is an express intention to include them, although there be no'intervening estate, is fully explained.

Decree accordingly. Costs to be paid out of the fund.