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

DECEMBER TERM, 1864.

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

A bt quest in these, words (afler a biqiust lo A. a daughter of Mary Pickett) “ I give and bequeath t<v»H t>-q rest of my nieces Mary Pick-etts (Mklien that ¡bo now has or nun hereafter lavo Maria and Jim Li ¡hv equally, the above negroes ¡o nmain in the lands, &e.” Mary PIA :t h.ivi-ig, at the tiras wku the -'-¡¡I wets made, no other daughter tirui A. 'm1: two sons, is a gift to -til the children of Mary Pickett v'.'h:-:l) s'10 then had (except A.) or might.at any timo thereafter have, vvhe-li-r in the. life time of the testatrix or after her death. ,

'fnc eases Shin rs. M-itity, 3 Jones Eq., 491, and Shull vs. JoIkscd, 2 Jones Eq., 202, cited and approvid.

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

Mary Rhodes died in tbe year 1832, having, a -short time before, made her-will, hy which she gave to Mary ¿fane 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 tliat she now has or may hereafter have Maria and Jim to sliare 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 ; hut, 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 plaintiffs are the survivors of the two sons of Mary Pickett who were in existence when .the will was made, and the administrator úi¡c ether, who died'after testatrix’s death. They claim tin; whole of the legacy, on, the ground that the word “ nieces ” should he read as if written niece's, and the words “she may hereafter have" should be construed as if the words “during my lifetime” were added. The defendants are the children of Mary Pickett, born after the death of the testatrix. The sons claim that the legacy‘should he divided among all the children of Mary Pickett: the. daughters claim the whole legacy, by force of the word meces. Mary Pickett was the niece of the testatrix, and is so described in a preceding part of the will.

Strong for the plaintiffs.

No counsel for the defendants in. this Court.

PjiAiisox, C. J.

By its proper construction, the clause in the will of Mary Rhodes, .which has given rise, to this controversy, should read, “ I give and bequeath to all'the rest of the children of my niece, Mary Piekett, as well those sbe may hereafter hare, 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 bo no intervening estate, is frilly explained.

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