Dew v. . Barnes

54 N.C. 149 | N.C. | 1854

The bill was filed by the plaintiffs, as the next of kin of Benjamin Simms, against the defendant Edwin Barnes, the administrator of said Benjamin, and against Willie Simms, who set up a claim to the property sought to be distributed under the will of James Simms. The principal question between the parties arises upon the construction of the will of James Simms, executed in September, 1846, shortly before the death of the testator. At the time of his death the testator had two sons, the defendant Willie, who was then about nineteen years of age, and Benjamin, aged about seventeen, and four daughters. He left also a widow.

By several clauses in this will the testator devised and bequeathed to each of his daughters, by name, considerable legacies (150) in land, money, slaves and other property in kind. By several other clauses in the same will he devised and bequeathed to Benjamin the remainder in a tract of land after the death of his mother; also another tract of land, eight slaves, by name, and their increase, and various other kinds of property; and to his son Willie he gave land, slaves by name and various other kinds of personal property; and immediately succeeding these devises and bequests to his two sons he adds these words: "If either of my — should die without a lawful heir the longest liver heirs the whole of both estates." Benjamin died without ever having had a child or children (never having been married), leaving Willie him surviving, and the defendant Barnes, as administrator, took possession of and now holds all the personal property bequeathed to him by the will of the testator, James, his father. The plaintiffs insist that by a proper construction of the above recited will the intestate Benjamin took an absolute estate in the property given therein to him, and that they, as his next of kin with the defendant Willie and Mrs. Barnes, are entitled to distributive shares of the slaves and other personal estate thus bequeathed. While the defendant Willie contends that under the will aforesaid this limitation was contingent, and that on the death of the said Benjamin without issue the property vested in him as the longest liver of the two sons.

The defendant Barnes submits in his answer to pay and distribute the estate in his hands to whomsoever the Court may consider entitled to the same, and asks to be advised as to his duty in this particular.

The prayer of the bill is for an account of the assets in the hands of the administrator, and for general relief. The cause was set down for hearing on the bill, answer and exhibit, and transmitted to this Court by consent of parties. No rule of law is better settled or more generally known than that in the construction of a will, the intention of the testator, apparent in the will itself, must govern — and that in order to effectuate that intention as collected from the context, words may, when necessary, be supplied, transposed or changed. 1 Jarman Wills, 427; Sessoms v. Sessoms, 22 N.C. 453. The difficulty in the clause of the will which we are called upon to construe arises manifestly from the omission of one or more words, which makes the sense incomplete. But no person, in reading the will, can doubt for a moment what the omitted words were intended to be. The testator had in preceding clauses given to each of his two sons land, slaves and stock, and then subjoined the clause in dispute. "If either of my should die without a lawful heir, the longest liver heirs the whole of both estates." The words "either" taken by itself signifies "one or another of any number," but it is here confined to two by force of the word "both," which signifies "two, considered as distinct from others or by themselves." The omitted word or words, then, is or are "sons" or "two sons," and it is so plain that such and no other was the testator's meaning that no argument can make it plainer. It is manifest also that by dying without a lawful heir the testator meant a lawful child, because if the one or other brother died without heirs, in a technical sense, there could be no survivor. One of the sons having died unmarried and childless, his estates goes, under the limitation, to his surviving brother. There must be a decree to that effect.

PER CURIAM. Decree accordingly.

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