Scott v. Moore, 60 N.C. 98, 1 Win. 98 (1864)

Dec. 1864 · Supreme Court of North Carolina

60 N.C. 98, 1 Win. 98

ABRAHAM SCOTT vs. WILLIAM MOORE and others.

The word “ children ” in the grant of a remainder, after the death of A., to her children living at her death, embraces grandchildren, if other parts of the conveyance show that it was the intention of the granter to provide for grandchildren.

An additional reason for this construction is furnished by the fact of snaA a provision being made in á marriage settlement.

This was a cause removed from the Court of Equity of Gaston county to this Court for trial. •

in 1816 Mary J. Scott, a widow, living in Lincoln county, married John-Moore of the State of Georgia. Before the marriage, and in contemplation of it,' the partie*, together with Logan Henderson, executed a deed of thi* tenor, viz : “ This indenture tripartite, made this 29th day of July, 1816, between, &c., witnesseth that wherea* a marriage is intended shortly to be had between the said John Moore and Mary Scott, and upon the treaty of the said marriage it was agreed' that previously to the marriage, Mary Scott should assign. and make over the following negroes, with their increase, which are the property of Mary Scott, to Logan Henderson, upon the trusts hereinafter expressed. Now this indenture witnesseth that, in consideration of the intended marriage and in performance of that agreement, Mary Scott does hereby sell and assign to the said Logan Henderson the following negro slaves, to wit': Candis, &c., to hold them upon the trusts, and for the interests, herein expressed, to wit: that he will permit John Moore and Mary Scott to take into their actual possession the said negro- slaves, and possess and use them for their joint lives, and also for and during the life of the survivor of them ; and, upon the further trust, that, immediately after the deaths of John Moore and Mary Scott, he will .divide the "said slaves and their increase .fairly and equally, having regard to their value, among all the children of the said Mary Scott that may be then alive, share and share alike, as well those ehildren .that may be the issue of the intended nlarriage with the said John Moore ; but if it should, so happen that there be not any issue' of the intended'marriage, then the whole of the said négro slaves and their increase to be divided between the present children of Mary Scott; and in case it should so happen that Mary Scott should survive John Moore, the trustee shall permit Mary Scott t© dispose of one-half .of the negroes and their increase ; provided she dispose of them to and among her children that may then be alive, or among the children of sueh children as may then be alive, or that may be alive at the time she .makes sueh disposition, or to any one of her children or grandchildren ; and upon the» further trust,, in case Mary Scott should survive John' Moore, and she should have no child nor grandchild, the negroes‘and their increase shall be subject to the disposition of Mary Scott by her last will or otherwise ; arid if she should <h'e without making &ny disposition of them, the same shall descend to her heirs at law'; and if John Moore should survive Mary Scott and, at the .time of his death, there should -not be a child or grandchild of Mary' Scott then living, the slaves and their increase shall descend to the right heirs of Mary Scott, according to the statute of distribution in the State of North Carolina. ’ ’

Mrs. Moore at the time of her marriage with Moore, had one child by her first marriage, the plaintiff. By her second marriage, she had two children, Lee Moore, and Elizabeth Moore, who survived their" father, hut died in the lifetime of their mother, leaving children (the defendants) who v^ere alive at the Urge of her death. Mrs.' Moore made no disposition of the' property • during her second widowhood.

The plaintiff claimed the "whole of the property, h« being the only child of his mother living at her death. The defendants cob.tended that the word “ children,” in the direction to the trustee how to dispose of the property ,®n the deaths of Moore and his wife, embraced grandchildren. . • * .

Henderson, the trustee, never possessed any ,part of the' property, or exercised control over it, and removed from, this State many years ago ; and it was generally supposed that he died in the State of Tennessee : but that fact had* not been ascertained, and the parties had no information whether he died testate or intestate, if he were dead. •

Besides special prayers for relief according to the plaintiff’s claim to the whole property, there was a general prayer for such relief as the plaintiff was entitled to' tinder the marriage settlement, in the existing state of tacts.

Winston, Sr., for the plaintiff.

W. H. Bailey for defendants.

Manlt, J.

The object of the bill is to get a construction of the marriage settlement between John Moore and Mary Scott, entered into shortly before their intermarriage.

The deed provides “ that, after the death of both, the slaves therein conveyed shall be equally divided between all tbe children of the said Mary Scott that may be then alive, share and share alike, as well- former children as those born of the intended marriage.” It seemsvthe event upon which this disposition is made of .the slaves has happened. Both are dead, without making effectual disposition of any of th# property ; and it- remains to be divided according to the deed.

Mary Scott, who was a widow at the time of her inter-, marriage with Moore, had one child, who survives her, and is the present plaintiff. She had two children by her second marriage, Elizabeth and Lee Moore, both of whom died before her, leaving children. The family- of Fites, mentioned as defendants, are the children of Elizabeth, and William and Maria Moore ar« the children of Lee.

In this condition of the family the question is, Whether-* Abraham Scott, the surviving child, takes the whole, or ■whether the grandchildren, the children, respectively of Elizabeth and Lee, take parts f.

A consideration of the whole deed satisfies us, that the grandchildren* may, according to the manifest intent, come under the designation of children, and take shares. ■ One provision of the deed is, in case the intended wife shall survive, she shall have, with regard to a portion of the negroes, a power to dispose of the same to, and among* her children‘and grandchildren, at will. Another provision-is, in case the wife survives and dies without leaving child or grandchild, any disposition which she .shall snake ef the property by will shall be good.

In this last provision there is a necessary implication, that if she had, in that contingency, 'left a grandchild, it would take according’ to their understanding of the deed. Both show that grandchildren, as well as children, were in the minds of the parties, and regarded as proper objects to be provided for.

Another consideration maybe added, arising out of the particular kind of deed before us. One of the principal ■objects of a marriage settlement; (it seems tobe so of this) is to provide for offspring ; all ot whom must be equally the objects of bounty, as none can have forfeited it, or placed himself in a situation to dispense with it. -There is the greater reason, therefore, for construing this class of deeds, in case of ambiguity, in such way as to accomplish equal justice amongst offspring, and satisfy natural affections.

The Court is of opinion, that the grandchildren are embraced within the provision of the deed fer children who shall survive ; but as they come in upon the principle of 'representation, they must come in as classes, and take only the shares to which their parents would have been entitled, had they survived.

Let a decree he drawn declaring these rights, and appointing commissioners to make division accordingly.

The costs must he paid hy plaintiff from the estate.