Clark v. . Hyman , 12 N.C. 382 ( 1828 )

The case stated that Darlet being seized of a large real and possessed of a considerable personal estate, made and published his will, duly executed to pass land, which had been proved in the county court, and was in the following words:

"In the name of God, amen. I, William Darlet, of, etc., being weak, etc., but, etc., do hereby constitute and appoint this my last will and testament (revoking and disannulling others heretofore made by me), in manner and form following, viz.: Item, I give and bequeath (after the payment of my just debts) all my property and possessions, consisting of both personal and perishable, to my much esteemed friends, Samuel Hyman and William R. Bennett, both of, etc., and it is my will and desire that they should pay all my debts out of it, and the residue to be equally divided between them, to have and to hold to them, their heirs andassigns forever. In testimony whereof I have hereunto set, etc."

His Honor, Judge Daniel, informed the jury that the lands of the testator did not pass by the will, but descended to his heirs. A verdict was returned for the lessors of the plaintiff, and the defendants appealed. The only question in this case is whether by the words "all my property and possessions, consisting of both personal and perishable," given to the defendants, with the further expressions, "that they should pay my debts out of it, and the residue to be equally divided between them, to have and to hold, to them, their heirs and assigns forever," the lands of the testator passed. If these words were sufficient to pass them, a verdict and judgment should have been entered for the defendant; if not, the plaintiffs as heirs at law are entitled to recover. That the words property, possessions, or estate are sufficient, if not qualified by the context, to bear a narrower signification, to carry real estate, is well settled by many decisions; but it is otherwise if it appear from the context (384) that personal estate only was in the contemplation of the testator. It is argued for the defendants that the testator meant, by the words "both personal and perishable," as referred to "property and possession," two distinct kinds of property, viz., real and personal, for that personal property is in its nature perishable, and therefore the last word would be redundant and unmeaning if not confined to personal property. It is, strictly speaking, true that all personal property is perishable, but our acts of Assembly have often mentioned personal property as perishable and unperishable, and have rendered the terms familiar in common use. Thus the act of 1723, ch. 15, empowers the executor to sell, by the directions of the court, so many of the unperishable goods as will pay and satisfy the debts; and the act of 1762, Rev., ch. 69, directs the guardian to dispose of such goods and chattels of the ward as may be liable to perish, consume, or be the worse for keeping. There is a similar division of personal property in the civil law. A book or a horse is called inconsumable, in opposition to corn, wine, money, and those things which perish, or are parted with in the use.

The case before us would resemble Wall v. Langland, cited from 14 East, 371, provided the words of the will had been property and possession, personal and perishable; for then, according to the principle of that case, the words "possessions personal and perishable" might have been taken cumulatively, and not as descriptive of the kind of property the testator intended to give. The words in that case were "property, goods and chattels," and the Court said they would not read the will "property, namely or viz., goods and chattels," but they would consider the word property as unrestricted and efficient to carry the real estate. The plain difference between the cases is that here the testator declares by the words "consisting of" (385) what he meant by property and possessions, and leaves no ground for a different construction. There are many other words which, if standing uncontrolled or no specification made that personal property alone was meant by them, will be sufficient to pass real estate, as "all I am worth." Haxtep v.Brooman, 1 Bro. Ch., 437. So, "all that I possess, both in doors and out of doors." Tolar v. Tolar, 10 N.C. 74. But even the word estate, which by itself is the most comprehensive one that can be used, will, when coupled with other words indicative of personal property, be so restrained. Cliffe v. Gibbons, 2 Ld. Raymond, 1324. Where there was a devise of the residue of effects, after a partial disposition of real and personal estate, it was held not to carry real effects. Camfield v.Gilbert, 3 East, 516. The case of Timewell v. Perkins, 2 Atk., 102, bears a strong resemblance to the one before us. The words of the will were "all my freehold lands in the tenure of the widow L, and the residue of my estate, consisting in ready money, jewels, leases, mortgages, etc., or in any other thing wheresoever or whatsoever, I give to A. B. or her assigns forever." It was held that the residue of the real estate did not pass to A. B., because the word estate is expressly confined to personals. In conformity with these authorities, the case ofHarris v. Mills, 4 N.C. 149, was decided in this Court. There the testator gave and bequeathed to his son Hood Harris, and his four daughters who lived with him, all the rest of his estate, consisting of various articles too tedious to mention.

The intention of the testator to devise his land is argued from the words "to have and to hold, to them, their heirs and assigns forever," being applicable to lands. They are so, but there is nothing to show that he was aware of it, for his want of information on such a subject is apparent from the whole will. Upon the supposition that he intended to pass land, it cannot be inferred that he knew the import of these (386) terms, when he knew not the proper terms to devise real estate. It is also said that direction to pay the debts out of it is indicative of his intention; but that pronoun is properly applicable to the bulk of the things bequeathed, as if he had said, to be paid out of my personal and perishable property. Taking, then, the rule to be clear that the heirs at law are not to be disinherited, unless the testator's intention to do so can be collected from the words of the will, which must convey a necessary implication, I cannot doubt that the judgment should be affirmed.

PER CURIAM. Judgment affirmed.

Approved: Fraser v. Alexander, 17 N.C. 348; Foil v. Newsome, 138 N.C. 117.

Distinguished: Champion, ex parte, 45 N.C. 246; Bunting v. Harris,62 N.C. 11.