54 N.C. 234 | N.C. | 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 *163 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 *164
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,
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,
Cited: Winder v. Smith,
(239)