60 N.C. 252 | N.C. | 1864
The controversy in this case arises upon the construction of the following clause in the will of Dempsey Blake, deceased: "I give and bequeath to my daughter Anne my negro woman Sarah, to her and her heirs of her own body forever; and if none, to return after her death to the rest of my children equally." The question is, whether the limitation over to the rest of the testator's children is too remote, and therefore void. The will was made in 1819, so that the construction is not controlled by the act of 1827; and that act cannot be allowed to influence our decision, except, perhaps, as indicating to us that the Legislature of that year thought the courts had gone too far in holding that the expressions "dying without heirs," or "heirs of the body," or "without issue," or "issue of the body," etc., meant an indefinite failure of such heirs or issue, and not heirs or issue living at the death (253) of the testator. Many decisions, both of the English courts and of those of this State, affecting the question now before us, have been brought to our attention by the counsel, and the task of showing an entire consistency among them would be a difficult one, if it were necessary for us to undertake it. From this difficulty, however, we are relieved by one or two recent adjudications of this Court, the authority of which we do not feel ourselves at liberty to dispute.
In Baker v. Pender,
The words of the bequest in the case now before us vary somewhat from those in the cases to which we have referred, but we are decidedly of opinion that the meaning is the same. The slave is given to the testator's daughter, Anne, and to the heirs of her own body; but if none, to return after her death to the rest of his children. "If none" means if she had no heirs of her own body, that is, children or the issue of children, the slave was, after her death, that is, as soon as she was dead, to return to the rest of his children. The expressions in Pinbury v. Elkin and Wilkinson v. South, ubi supra, were similar to those of the present case, with the exception that they contained the word "then," as "then after his decease" the property, which was personal, was given over to other persons. We think the construction must be the same whether the word "then" be inserted or not. The word, when used in such a connection, is not an adverb of time, as some have supposed, but is to be understood as a relative adverb in the sense of "in that case" or "in that (255) event" — that is, in the case or in the event of a "default of *157 such issue" the property shall, "after the decease" of the first taker, go over to another. Thus explained, these cases are direct authorities in favor of the construction which we adopt in the present case.
Decree accordingly.
Cited: Springs v. Hopkins,