Davis v. Shanks, 9 N.C. 117, 2 Hawks 117 (1822)

June 1822 · Supreme Court of North Carolina

9 N.C. 117, 2 Hawks 117

IN EQUITY.

Davis, Administrator of Means v. Shanks.

From Caswell.

A. bequeaths negro II. to his wife for life, and directs the negro and hei increase to be equally divided between his son J. and his daughter M. at the decease of his wife ; by a subsequent clause, he lends all the rest of bis estate to his wife during her widowhood, and at her marriage, to be divided between her and the son and daughter, one, third to each; and then follows this clause : “ but if my son and daughter should die before of age, then I give their estate to my wife to dispose of as she shall think proper.” The son died under age— the widow died.

'field, that the words “ their estate,” include the property bequeathed to J. and M. in the first clause, and, therefore, that the administrator of the son is not entitled to any part of the estate ; for if the last limitation he a cross remainder, then upon the death of the son under age, his interest vested in the daughter, and if it be not a cross remainder, then the interest went immediately to the wife of the testator.

The bill stated, that one Matthew Means died in the year 17"80, having, by his last will and testament, devised as follows : “ 1 lend to my beloved wife Sarah Means, one negro girl named Hannah, during her natural life, but if the said Hannah should have any children before my son Joseph comes of age, I leave such children, or child, if but one, to be equally divided, at the time of my non Joseph’s being of age, between my son Joseph and my daughter Mary j and the above said Hannah and the Test of her increase, to be equally divided between ®" ¡gon Joseph and daughter Mary, at the decease of my well beloved wife.” Sarah Means, the widow, intermarried with one Henry Davis, and Hannah continued in her possession- ami use until the death of Mrs. Davis. Joseph Means died intestate a few days before his arri-1 val at full age, and administration on his estate was granted to Complainant. After the ¡death of the widow Sarah, the Defendant intermarried with Mary, the (laughter of Matthew Means,, and took into his possession Hannah and her increase, claiming them as his property. Complainant claimed a moiety of them, and prayed a decree accordingly.

The Defendant, I., his answer, set forth a clause in the will of Matthew Means, connected with the former clause, and ih the following words : “ and also the rest of my estate, he it of what kind or qualify soever, I lend it to my well beloved wife» Sarah Means, during the time she remains my widow, and at her intermarriage, I leave the same to bo solé» and the money to be equally divided between my son Joseph and my daughter Mary, except one third part, which I lend to my wife during her life, and at her death, to he equally divided between my son Joseph and daughter Mary ; but if my son Joseph and daughter should both die before of age, then I give their' estate to my well-beloved wife to dispose of as she shall think proper.” The Defendant admitted that Hannah and her increase, named in the bill, were in his possession, and that he claimed them as his property, in right, of his wife, by virtue of the wili of her father. That the slave, Hannah, had but one child within the time in. which the said Joseph Means would have arrived at his full age, and that her increase, which Defendant now' had in possession, were all born after the time in which Joseph Means would have been of full age.

The cause having been set. for It,earing below, was transferred to this Court»

HENDERSON. Judge.

Hannah and her inórense are to be equally divided between Joseph and Mary, after the. death of the widow. The rest of the estate is given to his wife during her widowhood, but if she marries, the estate is to be sold, and two-thirds are to he divided between bis son and daughter, the other third is to go ,to his wife during life, and at her death, to be divided between his son and daughter, hut if they should die before they came of age, then to his wife. I cannot see upon what principles this bill can be sustained ; for if it was a cross remainder, then upon the death of the son under twenty-one, it vested in the daughter ; if it was not, it went immediately to the testator’s wife — (See 4 Cruise 414 el seq. T. Ray 452—1 Show. 135—Dyer 303, 330—Cro. Jac. 448—Saund. 104.) These authorities I cite from Cruise; they are all to be found in Bacon “ Devises G.” The death of the son without issue does away the necessity of considering, whether if there had been issue, the Court would not have supplied these words, aud without issue $ for I should he very unwilling to take the property from the issue of the son and give it to either the sister or mother by implication; for it is by implication alone that the eister takes, and by implication also that the mother can take before the death of both under twenty-one — (Vide Stephenson vs. Jacock’s case, decided in this Court at June term last- — 1 Hawks 285.) It has been said that Hannah and her issue, who are the subject of this suit, are not within the operation of the clause in the will now under consideration ; that it relates entirely to the perishable property in the clause immediately preceding it. Huí 1 think that the words their estate, include every thing given to them in the will; they are sufficiently broad to embrace if, and there is nothing to restrict them. 1 should think it was the plain and obvious meaning (,r the testator to subject all the property given to them by the will to the ulterior limitations.

Per Curiam. — Lc+ ?V bT he dismissed with costs.