Cheeves v. . Bell , 54 N.C. 234 ( 1854 )

The bill was filed by the executors of Henry Williams to obtain a construction of the will and for instructions in the payment of legacies according to the provisions of the same. The following is the material portion of this will, viz.:

"I bequeath that after my death that my negroes, land and every species of my property be sold, and after my honest debts have been paid, the balance be divided among my heirs as my will directs.

"First, I give unto my daughter Sarah Bell, Nancy Hightower and heirs, Simon Williams' four children (Wilson, Anne, Craven and Mary), Marmaduke Williams. I give unto my beloved grandson, Henry Carter, his mother's part of my estate, Margaret Cheeves. Rebecca Hopkins' part I give unto her four children, and lastly, I give unto Obedience Dolvin one hundred dollars."

The testator left surviving him the following children, Sarah Bell, Obedience Dolvin, wife of James Dolvin, Nancy Hightower, wife of William Hightower, Marmaduke Williams, Margaret Cheeves, wife of William S. Cheeves, and Rebecca Hopkins. A son, Simon Williams, had died in the lifetime of the testator and left the following children him surviving, viz.: Wilson Williams, Craven Williams, (235) Mary Fort, wife of William Fort, Anne Harris, wife of Richard Harris. Another daughter of the testator, Mary Carter, was also dead at the time of making this will, leaving her surviving one child, Henry Carter.

Rebecca Hopkins is still alive, and her children are Joseph H. Hopkins, Sarah Hopkins, Elizabeth Hopkins, Simon Hopkins and Obedience Dolvin, wife of James Dolvin.

The several questions arising in the construction of this will, as presented by the answers of the parties are:

1st. Dolvin and his wife contends that the will, except as to the clauses giving him $100, and those providing for the sale of the property and the payment of the testator's debts, is so vague and uncertain in its terms that no sensible rule for distributing the property among the persons therein mentioned can be derived from it, and they therefore insist that a distribution shall be made according to the statute upon the subject of intestate's estate.

2d. The children of Simon Williams say that they are entitled each to a share with Sarah Bell, Nancy Hightower, Marmaduke Williams, Henry Carter, Margaret Cheeves, and the four children of Rebecca Hopkins (the last taking as a class), that is, they each claim one-tenth of the fund, after deducting the debts and one hundred dollars for Mrs. Dolvin.

3d. The defendants, Margaret Cheeves, Marmaduke Williams, Henry Carter, Nancy Hightower and the four children of Rebecca Hopkins (excluding Mrs. Dolvin), insist that the distribution ought to be made between them as laid down in the second proposition, except that the children of Simon Williams shall only have one share between them, that is, that each shall have a seventh part of the fund, except the Hopkins children, who claim a seventh among them, and Simon Williams' children, who are entitled to a seventh among them.

The cause was set for hearing upon the bill, answers and (236) exhibit, and sent to this Court by consent. The bill was filed by the executors of Henry Williams, against his legatees, stating that difficulties had been suggested in the construction of his will in certain particulars, and calling upon the Court for its advice and direction. In examining the will with a view to its construction, it will be most convenient to consider the questions raised in the reverse order from that in which they are presented in pleadings. The counsel for the defendants Dolvin and wife contends that the will is void for uncertainty, except so much thereof as relates to the legacy to the wife of $100, the sale of the testator's property, the payments of his debts, and the appointment of his executors. But if that be not so, he then insists that they are entitled to an equal share of the estate, in addition to the legacy of one hundred dollars. In Owen v.Owen, 45 N.C. 121, we said that "all admit that the fundamental rule in the construction of wills is to ascertain the intention of the maker; and for that purpose all the parts of the will are to be taken into view, and effect is to be given as far as possible to every clause. What is wanting or obscure in one section or paragraph is to be supplied by what is clearly expressed in another, so as to give to the whole instrument a uniform, consistent interpretation throughout all its parts." Taking this rule for our guide, we have no hesitation in declaring the objection of uncertainty to be unfounded. The counsel says that, excepting the legacy to Mrs. Dolvin, nothing is given to any person whatever; that the testator merely names certain of his children and grandchildren, without giving them anything. That might perhaps be so, were the clause referred to taken by itself, but it is to be considered in reference to the other parts of the will; and taking it in (237) connection with the clause immediately preceding, it shows that the whole estate, when converted into money, is directed to be divided among his "heirs" in certain specific proportions which are subjoined. The claim for Mrs. Dolvin of a share of the estate, in addition to the legacy of $100, is clearly inadmissible. The sentence in which the legacy is given is complete. There is no apparent omission in it, as there is in the will of James Simms, which we were called upon to construe in Dew v. Barnes, ante, 149. We might as well supply any other words as those which the counsel insists ought to be inserted.

The main question in the case is whether the testator's four grandchildren, the children of his deceased son, Simon Williams, are to take per capita with his children, or per stirpes as representing their deceased father. The rule is firmly settled that they are to take percapita unless there be something in the will to show that, upon a just construction of it, the testator's intention is apparent that they should take otherwise. Ward v. Stowe, 17 N.C. 509; Martin v. Gould, Ibid., 305;Spivey v. Spivey, 37 N.C. 100; Harris v. Philpot, 40 N.C. 324;Henderson v. Womack, 41 N.C. 437. The general rule was adhered to in Wardv. Stowe, and Harris v. Philpot, in the first of which the question was fully argued by counsel, and the whole subject fully considered in an elaborate opinion of the Court, in which all the English cases were reviewed. The other cases of Martin v. Gould, Spivey v. Spivey, andHenderson v. Womack were held to be exceptions to the admitted general rule, upon the special indications of intention apparent in the wills, respectively, which those cases brought before the Court. This narrows the question before us to the inquiry whether any expression is to be found in the present will to exclude the application of the general rule. It must be admitted that there is not, unless it be in the first clause of the will, which is as follows: "I request that after my death, my negroes, land, etc., be sold, and after my (238) honest debts be paid, the balance be divided among my heirs, as my will directs." It is contended by those who are opposed to the application of the general rule that the word "heirs" means children, and that by dividing his property among his children the testator intended to assign to each living child an equal share, except as otherwise directed, and then to give the shares of his deceased children to their children, respectively. It may be that the testator by the term "heirs" meant "children," but it is more probable that he meant his issue, for whom he felt bound to provide, and therefore included his grandchildren, whose fathers and mothers were dead. Whether he meant the one or the other, we think the construction contended for cannot be admitted. The testator shows that he knew how to give the share of a child to his or her children, whether such child were living or dead. For instance, he gives to his grandson, Henry Carter, the share of his mother, who was dead, and to the four children of Rebecca Hopkins the share of their mother, who was living. Why, if he intended to make a like gift to the children of his deceased son, Simon Williams, did he not express himself in similar terms? Why name Simon Williams's children seriatim at all, unless he intended them to take per capita with the other named legatees who were to have a share? We think the intent to be collected from the will itself is rather for than against the admissibility of the general rule, and it must prevail. A decree may be drawn in accordance with this opinion.

Cited: Winder v. Smith, 47 N.C. 331; Bivens v. Phifer, Ib., 438;Burgin v. Patton, 58 N.C. 427; Britton v. Miller, 63 N.C. 270; Thomasv. Lines, 83 N.C. 199; Culp v. Lee, 109 N.C. 677.

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