| N.C. | Aug 5, 1860
The plaintiffs and defendant both claim under the will of Bushrod Doggett, which was made in 1829. The clauses of said will material to the questions considered by the Court are as follows:
1. "In the first place, it is my will that my beloved wife, Susannah Doggett, shall be well provided for. I therefore will and bequeath unto *451 her, first, the following slaves (mentioning four by name; also a tract of land and other personal property), and at her death the negroes and their increase, together with the land and other effects devised to her, to be equally divided between my children then living, or their issue; at the same time reserving the first child the said Jinney may have for Bushrod Doggett, the son of my son Richard, for him to have and receive when he arrives at mature age."
"Item 2d. I will and bequeath to my daughter, Sarah Wilmoth, one negro girl named Selah, together with a mare and cattle, that she has heretofore received, all of which I estimate at $280, to her sole use or her issue.
"Item 3d. I will to my daughter Nancy Moseley the tract (588) of land whereon she now lives, supposed to be 56 acres; also one negro girl named Harriette, a horse and cattle that she has received. I estimate the whole at $430, which I intend for the said Nancy or her issue.
"Item 4th. It is also my will to give to my daughter Elizabeth one negro girl named Rachel, with my lots and improvements in Rutherfordton, together with 30 acres of land contiguous to the town, on the east side. I estimate the whole at $580, which I intend for her own proper use or her issue.
"Item 5th. I give and bequeath to my daughter Martha Butler one negro girl named Jude, 100 acres of land where she now resides, to be laid off in a square on or joining the lower south line — $20 worth of cattle. I estimate the whole at $520, which I give for her use and her issue, or the use thereof of her issue, which is intended to be distinctly understood as relates to what I have willed to each of my daughters."
The action is brought for the recovery of the female slave Hariette and her six children.
The plaintiffs are the illegitimate children of Nancy Moseley, born in 1820 and 1822, while she was living at her father's house, and were well known to him at the time of the making of the will, in 1829. The legatee, Nancy, was married to the defendant Moseley in 1823, and died in 1854. She always lived near her father, and was a favorite child. She never had any children after her marriage with the defendant, and left no other issue than these illegitimate children (the plaintiffs). The defendant has had possession to the slaves ever since the death of his late wife, and before that had possession with her, from the year 1829 up to the period of her death.
The plaintiffs removed to Tennessee in 1833, and have resided there ever since. *452
The plaintiffs offered to prove that Bushrod Doggett was himself a bastard, which was ruled out by the court, and plaintiffs' counsel excepted.
(589) It was contended by the plaintiffs that under the third clause of the will the slaves in question are limited to them as the issue of Nancy Moseley.
A verdict was taken for the plaintiffs, subject to the opinion of the court on the plaintiffs' right to recover at all, with leave to set aside the verdict and enter a nonsuit, provided he should be of opinion against the plaintiffs' right.
His Honor afterwards, on consideration of the point of law reserved, ordered the verdict to be set aside and a nonsuit entered. The claim of the plaintiffs to the slaves in controversy is founded on the following clause in the will of Bushrod Doggett: "I will to my daughter Nancy Moseley the tract of land whereon she now lives, supposed to be 50 acres; also own negro girl named Harriette, and horse and cattle she has received. I estimate the whole at $430, which I intend for the said Nancy or her issue." The plaintiffs are the natural children of the testator's daughter Nancy, born before her intermarriage with the defendant Moseley, and the slaves sued for are the negro girl Harriette and her children; and the question is whether the above recited clause of the testator's will admits of a construction which, on the events that happened, has vested a title in the plaintiffs, so as to enable them to recover in this action.
In the arguments of the counsel several views have been presented as to the meaning of the testator in giving the girl Harriette to his daughter Nancy "or her issue." The counsel for the defendant contends that his intention was to make the bequest to his daughter absolute, provided she survived him, or to her issue in the event of her dying in his lifetime, and the counsel insists that as she survived her father, the legacy became absolute, and vested at once in the defendant, as her husband, jure mariti. This construction seems plausible, and is (590) certainly aided by lights derived from other parts of the will.
In the first clause the testator, after giving certain land, negroes, and other property to his wife for life, directs that at her death it shall be divided "between his children then living or their issue." Here it is manifest that the children of the testator living at the death of their mother were intended to take absolute estates in the shares *453 devised and bequeathed to them, but if either of them should be dead, leaving issue, such issue was to take what his, her or their parent would have done had he, she, or they been then living. The word "or" was certainly used in a disjunctive sense, and cannot be supposed to have been used in the sense of "and." In the second and forth clauses of the will the bequests to each of the testator's daughters, Sarah and Elizabeth, is to her "or to her issue," as in the case of the bequest to the plaintiffs' mother, Nancy. From the use of the same terms in the second, third. and fourth clauses, which he had employed in the first clause of his will, the inference is very strong that the testator intended the same thing in each, which was that the issue of either or all of his daughters should take only in the alternative of her or their deaths.
The counsel for the plaintiffs insists strenuously this construction is inadmissible, and he contends that the disjunctive conjunction "or" must be taken in the conjunctive sense of "and" and, in support of this argument, he relies strongly upon the phraseology of the bequest to the testator's daughter Martha Butler, in the fifth clause, which is, "for her use and her issue or the use thereof of her issue, which is intended to be distinctly understood as relates to what I have willed to each of my daughters." Here it will be noticed that the word "and" is used, but it is followed immediately by the expression "or the use thereof of her issue," which leaves it doubtful whether the testator meant to vary the meaning in that particular of the bequests to his daughters "or their issue" in the previous clauses of his will. But suppose that he did, and that "or" is to be construed "and" throughout, the inquiry, is at once suggested whether it will help the plaintiffs' case. A bequest to a woman and her issue undoubtedly gives her an absolute (591) estate when she has no children or issue during the life of the testator; but if she has children or issue when the will is made and at the death of the testator, she and her children or issue may take absolute estates as tenants in common, unless there is something in the will indicative of an intention that she shall take as tenant for life, with remainder to her children or issue. See Moore v. Leach, 48, N.C. 88, and the cases there cited. Here, there is no expression in the will which can be constructed to give the mother a life estate only, and the consequence is that if the plaintiffs can claim at all under the description of issue, they must take as tenants in common with the defendant, who, by his intermarriage with their mother, became the owner of her share of the slaves. If such be their title, they cannot maintain the present action against their cotenant but their remedy will be a proceeding against him for a partition of the slaves thus held in common.
We have thus far considered the case as if the illegitimacy of the *454 plaintiffs formed no objection to their claim; but we are entirely satisfied, from an examination of the authorities, that the term "issue," as used in the clause of the will now before us, means legitimate issue only, and does not embrace the plaintiffs. Most if not all the English cases on this subject are collected and analyzed with his usual critical acumen by Mr. Jarman in the second volume of his valuable work on Wills. Among these cases is included that of Wilkinson v. Adams, 1 Ves, Beame, 460, in which the judgment was pronounced by the Lord ChancellorEldon, assisted by Thompson, Baron, and LeBlanc and Gibbs, JJ. The result of Mr. Jarman's examinations is thus expressed: "They (that is, illegitimate children) are not objects of a gift to children or issue of any other degree, unless a distinct intention to that effect be manifested upon the face of the will; and if by possibility legitimate children could have taken as a class under such gift, illegitimate children cannot, though children, legitimate and illegitimate, may take (592) concurrently under a designatio personarum applicable to both." See 2 Jarman on Wills, 155.
In the will now under consideration there is no designation of persons applicable to both kinds of children, and there is nothing upon the face of it to indicate any intention, much less a distinct intention. that illegitimate issue was meant, and with regard to the testator's daughter Nancy there was not only a possibility, but a strong probability, but that at the time when the will was made she might have legitimate issue to take instead of her bastard children. The word issue is used by the testator in connection with his other daughters in precisely the same manner as it is with respect to his daughter Nancy, and since, as to them, it undoubtedly means legitimate issue, it must have the same construction as to her.
The testimony offered by the plaintiff to show that the testator was himself a bastard could not have aided the court in ascertaining his meaning, and was, therefore, properly rejected as immaterial.
The statute of limitations was relied upon by the defendant. It would, of itself, have afforded a complete defense against the action (if the claim of the plaintiffs had been otherwise well founded), but for an act of Assembly which was passed in 1852, and which was in force until 1 January, 1856, when the Revised Code, in which it was omitted, went into operation. By that act it was provided, "that on the trial of any suits before any of the courts of this State the time during which the parties to a suit shall not have been a resident shall not be given in evidence in support of the plea of the statute of limitations." Laws 1852, ch. 51, sec. 2, referred to in Phillip v. Cameron,
PER CURIAM. Affirmed.
Cited: Harrell v. Hagan,