Guardian of Christian v. Christian

| Ala. | Jun 15, 1836

Hitchcock, C. J.

This was a, writ of error, tothe County Court of Wilcox County, to reverse a decree of that Court, in the matter of the will of George Christian.

The testator, by his will, after making sundry specific devises and bequests, to his wife, and several of his older children, makes the following bequest.

"8. I give to my grand-son, John W. Christian, an equal dividend of the slaves, with the following named children, [here naming nine,] to whom I gave the slaves,' as before mentioned, to be equally divided, when James A. Christian arrives at the age of twenty-one years.”

The estate having been divided, and sundry ne-groes having been allotted to John W. Christian, he, by his guardian, claimed a share of the hire of the negroes, from the death of the testator, to the period of the distribution, which the Court below disallowed. To reverse this decision, the case has been brought to this Court.

A question was suggested in the argument, whether any thing is bequeathed in this clause of the will ? It is contended, that the expression, “ to whom I gave the slaves,” before naming the children, and the words, “ as before mentioned,” after, must refer to a former part of the will; and as no such bequest is to be found in the will, nothing is conveyed.’

To my mind, thére is no difficulty. The word “ gave,” was probably written “ give,” in the will, and the words, “as before mentioned,” there, refer to the words, “ an equal dividend,” &c.

Whether this construction is correct or not, it is perfectly clear, that the testator did give, in this clause of his will, an equal undivided tenth part of all his slaves, not otherwise disposed of his will, to his grand-son : and it is a well settled rule in the construction of wills, “that the intention of a testator is not to be set aside, because it can not take effect to the full extent; but it is to work as far as it can.”^a Neither can a positive bequest be controlled by inference and árgumení from other parts of the will.”^b

. The bequest in this instance, is, what the law denominates a “ legacy of quantity, in the nature of a specific legacy — as where so much money is bequeathed with reference to a particular fund for its páy-ment :”^c to which, except in some cases applicable to this particular kind of legacy, the rules applicable to specific legacies, apply; which are considered as severed from the bulk of the testator’s property, by the operation of the will, from the testator’s death; and with their increase and emoluments specifically appropriated for the benefit of the legatee from that period, upon which interest is computed from the death of the testator: and it is immaterial whether the enjoyment of the principal is postponed by the testator or not.^d

this case, the bequest is of an equal undivided tenth part of the testator’s slaves — their being nine children. The enjoyment of the specific property is to be postponed until James A. Christian, one of the legatees becomes of age. The hire, however, according to the principles above stated, is due from the death of the testator.

The decision of the Court below, must,'therefore, be reversed, and the cause remanded, in order to take 'an account of the hire of the slaves, from the death of the testator.

a 4 Ves.325

b 8 ib. 42.

c Roper on Leg. 150.

d 2 ib. 188; 2 Wms. on Ex ors.876