28 N.C. 226 | N.C. | 1845
A paper-writing purporting to be the last will and testament of William McDaniel, deceased, was offered for probate, and being contested, *170 an issue of devisavit vel non was made up. An appeal having (227) been taken from the judgment below to the Superior Court, the following case agreed was then submitted to the court:
At the court of pleas and quarter sessions of Caswell County, at January Term, 1832, the original paper, of which the following is a copy, was duly proved and recorded as the last will and testament of William McDaniel, deceased, to wit:
"In the name of God, Amen. I, William McDaniel, etc., do make and ordain this to be my last will and testament, in manner and form following, viz.:
"First. It is my will and desire that after my decease all my just debts shall be paid out of my estate.
"Second. That it is my will and desire that, after my decease and the decease of my wife, Jane McDaniel, that all my property of every description, real and personal, which has not heretofore been deeded away by me, shall be sold by my executors and the proceeds thereof shall be equally divided between all the children of my son John McDaniel, and all the children of my deceased daughter, Elizabeth Darby, except the sum of $100, which said sum of $100 shall be equally divided between my two granddaughters, Matilda Leigh and Juliet Leigh, and my daughter Polly Leigh, wife of the said William Leigh.
"Thirdly. It is my will and desire that after the death of myself and wife, that my son Hiram McDaniel shall have two negro men, Ben and Ned, they having been before deeded to him; also, $100 to be paid him out of the proceeds of my estate in lieu of a negro girl named Eliza which I once deeded to my son, the said Hiram.
"Fourthly. It is my will and desire that my grandchildren, John J. McDaniel and Johnston McDaniel, sons of my son William McDaniel, deceased, shall have, whenever they apply for them, a negro woman, Tinney, and her three youngest children, namely, Delsey, Sarah, and the youngest boy, to them and their heirs forever."
The will then appoints executors, etc. This paper, in the case agreed, is called A.
(228) At October Term, 1845, a paper-writing, marked B in the case, was propounded for probate by the plaintiffs in this suit as a part of the last will and testament of the said William McDaniel, deceased. It is unnecessary to set forth this paper-writing in detail. It purported to be a deed of conveyance, dated in 1823, from the said William McDaniel to William W. Price for certain slaves and other personal property for the sole and separate use of Sally Price, daughter of William McDaniel, for and during her natural life, and, after her death, the property to be conveyed to her children. This deed had subscribing witnesses, and was duly proved at July Term, 1823, and subsequently registered. *171 The deed reserved to William McDaniel and his wife a life estate in the said property.
The defendants, by an order of the court, were summoned to the proceedings and were regularly made parties thereto. Whereupon an issuedevisavit vel non as to this paper was submitted to a jury, who returned their verdict that the said paper-writing was not the last will and testament of William McDaniel, deceased, or any part thereof; the said court pronounced judgment accordingly, and the plaintiffs appealed to the Superior Court. And now it is agreed by the parties that the said paper-writing marked B was executed by the said William McDaniel as it purports to have been, and the same was executed as a deed, and was intended by the bargainor to operate as a deed, and was duly proven and registered as such. And it is further agreed that the said paper-writing was in law inoperative as a deed, as to the remaindermen, because of a reservation of a life estate in the property to the bargainor. And it is agreed that the said paper-writing marked B is no part of the last will and testament of the said William McDaniel, unless the same is made so by the last will and testament of the said William McDaniel, marked A. And it is further agreed that a deed conveying to the said Sally Price a certain tract of land, reserving the life estate of the grantor and his wife, was duly executed in January, 1821, and was subsequently proved and registered. The court decided, upon this case (229) agreed, that the paper-writing marked B was not a part of the last will and testament of William McDaniel, deceased, nor any part thereof, and pronounced judgment accordingly. From this judgment the plaintiffs appealed. The question before us is whether or not the paper-writing, marked B in the case is to be taken as a part of the last will of William McDaniel, deceased, and to be incorporated with the paper marked A, which is admitted by all parties to be testamentary. The propounders insist that the paper B is to be now considered testamentary, although it was not intended so to be at its original making. And they reply on what is said by the testator in the second clause of the paper A. That clause is as follows: "It is my will and desire that after my decease and the decease of my wife, Jane McDaniel, that all my property of every description, real and personal, which has not heretofore been deeded away by me, shall be sold by my executors, and the proceeds thereof shall be equally divided between all the children of my son John McDaniel, and all of the children of my deceased daughter Elizabeth *172 Darby," etc. The law is that if a testator in his will refers expressly to another paper, and the will is duly executed and attested, that paper, whether attested or not, makes part of the will; but the instrument referred to must be so described as to manifest distinctly what the paper is that is meant to be incorporated, and in such a way that the Court can be under no mistake; and the reference must be to a paper already written, and not to one to be written subsequently to the date of the will. Lovelass on Wills (Barrows' ed.), 305. Habergan v. Vincent, 2 Ves., J., 228; Smart v. Pujein, 6 Ves., 565; Hume v. Rundell, 6 Madd., (230) 341; Wilkinson v. Adams, 1 Ves. Bea., 445. Does the law as thus laid down support the case made by the propounders of this paper? We think it does not. If the property mentioned in the paper B passed to William W. Price, by force of the said paper B, as a deed, then it seems to us plain that the testator did not mean to dispose of it or to confirm the said paper by what he has written in the second clause of his last will; because he professes to dispose, by his said will, of that property only which he had not theretofore deeded away. If, on the other hand, the property mentioned in the paper B belonged to the testator, and had not before been deeded away by him, it then, by the very terms of the second clause in the will, was to be sold and the money divided among certain of his grandchildren. The propounders appear to be placed in a dilemma from which this Court cannot extricate them. The testator does not, in the second clause of his will, refer expressly to the paper B; it is not so described (if described at all) as to manifest distinctly to the Court, without mistake, that this paper was intended to be incorporated in his last will. It has been insisted by counsel in the argument that the testator intended by the words he has used to confirm and to incorporate in his said will all the deeds (and he made other deeds) and other papers in the nature of deeds which he before had ever executed. The answer to this is that we cannot, manifestly and without the danger of a mistake, see that it was the intention of the testator to incorporate all or either of them in his will. It rather seems to us that the testator used the words, "which has not heretofore been deeded away," to denote that his then will was only to operate (as the law would have made it operate) on that property of which he then was the legal owner; and to inform the reader that he had theretofore made deeds of some property which he had once owned, and which property he did not then intend to meddle with. We must, therefore, say that we see no error in the (231) opinion given by the Superior Court, and the judgment must be
PER CURIAM. Affirmed.
Cited: Bailey v. Bailey,
