56 N.C. 342 | N.C. | 1857
"Item 1st. After paying all my just debts out of cash on *343 hand, or debts due me, I give and bequeath the balance of my property to my sisters, that may be living at the time of my death, and their lawfulissues, except the slaves.
"Item 2nd. The slaves of which I am now seized and possessed, I give to my mother during her natural life, and after her death to go to my sisters and their children as above-mentioned, with the express condition that no property, of which I am now possessed, or may hereafter fall heir to, shall go to any but my sisters directly and their progeny, and not their husbands. * * *
"Item 4th. I give and bequeath to my sisters, as before stated, my life-policy of five thousand dollars."
The testator left six sisters surviving him, of whom William Annie alone was married before the death of the testator. Her husband is the defendant Hardy Norvall. Since the testator's death, another sister, Heron J., has intermarried with the defendant Joseph John Pender. The other four sisters, Mary, Nancy R., Esther Anne, and Coelia Antoinette, are still unmarried.
Mrs. Norvall had issue of her marriage, during the lifetime of the testator, one child, who is made a party, and one after the testator's death.
The executor prays the opinion of the Court as to the point, whether the estates given to the sisters, are sole and separate estates; and if so, as to the defendant Mrs. Norvall, who was married when the will took effect, whether such is the case in respect to Mrs. Pender, who married subsequently to that event; and especially whether the provision for a sole and separate estate, is to apply to such as may marry hereafter.
He asks instruction also upon the question, whether the issue of the sisters is entitled to any interest in these legacies, or whether the whole does not go to the sisters in absolute right; and if the children shall be considered entitled, whether they take jointly with their mothers, or estates in remainder after the death of their mothers.
The defendants answered, admitting the facts as above *344 stated, and uniting in the executor's request for a construction by this Court.
Cause set down for hearing on the bill and answer, and transmitted by consent. We are satisfied that it was the intention of the testator to give to his sisters the proceeds of his life-policy, in the same manner as he had given the balance of his property in the first item of his will. The expression, "to my sisters as before stated," admits of no other sensible construction. The fourth item of the will, in which it is found, was indeed unnecessary, as the policy would have passed under the first; but the testator seemed to have had an idea that it required express words to pass it, and his only purpose was to make it certain that the policy should be included in the gift of the "balance," excepting the slaves.
We have no doubt that the word "issues" in the first, and the word "progeny" in the second, item of the will, as applied to his sisters, were used in the same sense, to wit, children, and that the testator meant that all the children which his sisters might have, should be benefitted by the bequest. One, only, of the testator's six sisters was married and had children at the time when his will was made and at his death, and he certainly did not intend to exclude the children which his unmarried sisters might have, if they should think proper at any future time to marry and bear children. To give full effect to the will, therefore, it is necessary to adopt the construction, that the sisters shall take estates for life in the slaves and other property, with remainders to their children. This will embrace all the "issues," "progeny" or children, which the sisters, or any of them, may ever have, and is supported by the case ofPonton v. McLemore, 2 Dev. and Bat. Eq. Rep. 285.
It is very certain that the testator intended his married *345 sister should take what he gave her for her sole and separate use. The expression that none of his property should "go to any but my sisters directly, and their progeny, and not their husbands," can admit of no other fair interpretation. It is applied equally to all the sisters, and the Court cannot make any distinction between them. It differs from the case ofApple v. Allen, ante 120, because here, one of the sisters is married, and the husbands of all are expressly excluded. As to the unmarried sisters, their future husbands, should they ever marry, were necessarily referred to. No other construction can be put upon the words, and in that respect it differs from the case of Miller v. Bingham, 1 Ire. Eq. Rep. 423. It must therefore be declared to be the opinion of the Court, that the testator's sisters take each a life-estate in the property bequeathed to them, with remainders to their children respectively, and that they take their life-estates to their sole and separate use exclusive of their husbands, which either of them now has, or may hereafter have. A reference must be made to ascertain a suitable person to act as trustee for them.
PER CURIAM, Decree accordingly.