Bunting v. Harris, 62 N.C. 11, 1 Phil. Eq. 11 (1866)

June 1866 · Supreme Court of North Carolina
62 N.C. 11, 1 Phil. Eq. 11

WILLIE BUNTING v. JOHN H. HARRIS, Ex’r., &c.

Where a testator used the following expressions; “ I give and bequeath unto my wife Sarah, all of the property that I possess at the time of my death, consisting of alt my real estate of all hinds, and all my money, notes and accounts, after paying all my just debts“My father and mother are to have the land lying on the south-east side of the Reedy branch, of the tract of land where they now live, and the stock, household and kitchen furniture, at that place and mentioned no other things in his will, although he died in possession of fifteen or more slaves, and of horses, cattle, crops, &c.; Held, that the wife was constituted universal legatee, except in regard to what was expressly given to the father and mother.

By Peakson, C. J., arguendo;

(1.) The words used in different wills are so different, and the circumstances of testators, in regard to property and the objects of bounty, are so various, that it is almost impossible to find one case upon such subjects that ought to govern another.

(2 ) In doubtful questions of construction, something must he yielded to the contemporaneous action of the parties concerned.

(The cases, Fraser v. Alexander, 2 Dev. Eq, 348, and Olarh v. Hyman, 1 Dev., 382, cited, approved, and distinguished.)

Original Bill, for a residue alleged to be undisposed of, filed at Spring Term, 1861, of the Court of Equity for Nash county. Subsequently a demurrer was filed by the defendant, apd at Fall Term, 1862, the cause was set down for argument and removed to this court.

The bill stated that the complainant was the father of the testator, B. B. Bunting, late of Nash county, who died in 1847, without issue, leaving a widow ; and that the defendant was the executor of that widow, and, (as such,) also of the testator. After giving an extract from the testator’s will, and stating that he died in possession, among other things, of certain slaves, some of which the widow sold to pay the testator’s debts, and others she retained until her death, in September, 1860, when they came into the hands of the defendant, the bill further stated that the complainant had been advised that the slaves did not pass *12under the will, but were to be divided between the widow and himself, under the statute of limitations ; and there was a prayer for an account for distribution, and for other relief.

The following is the- dispositive portion of the will referred to : u I give and bequeath unto my wife Sarah all the property that I possess at this time, or may possess at the time of my death, — consisting of all my real estate of all kinds, and all my money, notes and accounts, after paying all my just debts ; and my wife Sarah is to settle all my business if it is her wish, without an administrator. My father and mother are to have the land lying on the south-east side of the Reedy branch of the tract of land where he now lives, and the stock, household and kitchen furniture at that place ; and not to be dispossessed of it during either of their lives, and at both of their deaths, that part of my estate is to be divided between my brothers and sister Susan, share and share alike. In witness whereof,” &c.

Moore, for the complainant.

The slaves do not pass under the clause. The comprehensive words are explained by the enumeration in detail. „

In Olark v. Hyman, 1 Dev., 382, tie words were, ££I give all my property, consisting of both personal and perishable :” held, that land did not pass.

In Fraser v. Alexander, 2 Dev. Eq., 348, the words were, <£ As to what wordly estate I have, I dispose of it as follows : It is my will that, all my property, consisting of lands, stock of every kind, household and kitchen furniture, wagon and farming tools be sold at public sale, and divided among,” &c. ££It is my will that my executor sell my negroes at private sale,” without any direction for distributing the proceeds of sale; held, that the slaves did not pass under the will.

*13Here,*says Ch. J. Ruffin, délivering the opinion of the court, after the general words “ what wordly estate it had pleased G-od to bless her-with,” and “all my property” follow “consisting of lands, stock of every kind, &c.; which, I do think, qualify the force of the preceding large words, and confine the bequest to the subjects particularly denominated.” Here, “all my property ” is controlled by “consisting.” It is not “all the property/'’absolutely ; but all that “consisting of,” or which consists of land, stock, &c. It is not a defective enumeration of the things intended to be given, but is a precise description of the specific things given, and of all of them.

In Champion and others ex parte, Bus. Eq., 246, the words were, 1. “I give to H. 0.. all my real estate, consisting of lots in Shelby,” and then minutely and specifically enumerated many lots situated in the town. 2. “I give to H. C. all my personal estate,” and then proceeded to give to H. C. other real estate not designated by the first clause. There was a tract of land not mentioned in either clause, (it having been purchased after the making of the will in 1841.) The court drew a distinction between this and the former cases, saying that, in this case, there was a mere failure to enumerate the particulars of a class ; and that in the former cases the enumeration was in reference to classes ; and that a failure to enumerate the particulars of a class would not have the effect to exclude any article of "the class.

It is manifest that there is no purpose, in the will before us, to make classes; and the case falls under the opinions of the court in the two first cases.

Batehelor, for the defendant.

Pearson, C. J.

The bill' is very meagre in its statements, and, on that account, the court has been much embarrassed.

We are informed that the testator died without children, *14leaving him surviving a wife, father and mother, brother and sister. We are also informed that, at the time of his death, the testator owned some fifteen or twenty slaves; but we are not informed whether he owned any land, (except the tract devised to his father and mother,) or whether he owned any horses, cattle, hogs, crops on hand, &c. There is nothing to authorize the court to assume that he did not own any land except the tract devised to his father and mother, and that he was cultivating the land of his wife, with negroes, horses, &c., acquired, “jure mariti.”

We are also informed that, by his will, he bequeathed and devised as follows: “I give and bequeath to my wife ¡Sarah, all the property that I possess at this time, or may possess at the time of my death, consisting of all my real estate of all kinds, and all my money, notes and accounts, after paying all my just debts.” My father and mother are to have the land lying on the south-east side of the Reedy branch, of the tract where he now lives, and the stock, and household and kitchen furniture at that place.”

The notion that this man intended to give to his wife lands, notes and accounts, subject to the payment of his debts, and to his father and mother the tract of land on which they lived, and the stock, household and kiteken furniture at that place,” and that he died intestate, in respect to fifteen or twenty slaves, and to horses, cattle, hogs, crops, &c., is so contrary to the ordinary course of things, that every one will exclaim, There must be some mistake about it! Such could not have been his intention ! Either the draftsman of the will has, in the former of the clauses above cited, used the "word consisting instead of the word including, or else the word real to signify corporeal property, to wit, negroes, horses, farming utensils, crops, &e., as contradistinguished from things incorporeal, to wit, money, notes, accounts, &c. We think, by its proper construction, the will makes the wife of the testator his “ universal lega*15tee,” except in respect to the tract of land and small articles given to his father and mother ; and that the legacy to his wife includes the slaves, horses, crops, &c., that the testator owned at the time of his death. What other sense can be given here to the words, “ My real estate of all kinds, and my money, notes and accounts,” than — My corporeal estate of all kinds, and my money, notes and accounts ?

This, we are satisfied, was the meaning of the testator, and in looking at the cases, we are gratified to find that there is nothing to force us to the conclusion that this man died intestate as to his slaves, horses, cattle, &c., which being present, and so forcing themselves on the attention, are the primary subjects for the payment of debts, and the first things ordinarily disposed of by will. The cases of Fraser v. Alexander, 2 Dev. Eq., 348, and Clark v. Hyman, 1 Dev., 382, were cited on the argument by the counsel for the defendant, as governing this case. In Fraser v. Alexander, there is an express direction to sell the negroes at private .sale — that case has no application. In Clark v. Hyman, the conclusion is, that land is not included in the description, “ because, heirs at laxo are not to be disinherited, unless the testator’s intention to do so is clear.” In the present case the strain is, to exclude from the general words, slaves, horses, cattle, &c., which constitute the primary fund for the paymentjof debts, and are the subjects most ordinarily disposed of in wills. So also here, the cases are altogether different; and the construction of this will cannot he controlled by the construction put upon that.

Indeed words used in different wills are so different, and the circumstances of testators in regard to property and the objects oi bounty are so various, that it is almost impossible to find one case that ought to govern another. Each must stand on its own peculiar circumstances, and in doubtful questions of construction something must be yielded to the cotemporaneous action of the parties concerned ; as, in this *16•case, an acquiescence for many years in the construction, by which it was taken for granted that ■ the testator had given his whole estate, including land, choses in action, negroes, horses, &c., (except the small legacy to his father and mother,) to his wife, subject to the payment of his debts.

The bill must be dismissed.

Per Curiam.

-Decree accordingly.