Hamilton v. Lewis

| Mo. | Jan 15, 1850

JSTAPTOIT, J.

The principal questions in this case depend upon the construction of the 9th article of the will, upon which the 11th article is based. The 9th article directs certain property to be sold for the payment of the testator’s debts and “the balance, if any, to be equally divided amongst his children and grandchildren, each grandchild having their equal proportion of what Jlteir ancestor would have drawn, had they have lived.”

We entertain no doubt as to the meaning of this clause. The disposition intended is precisely that which the statute of Distributions would have made, had the will, been silent. The words children and grandchildren are not intended to designate the.persons who would take, but those classes are named merely because at the making of the will they embraced all those persons who constituted his heirs at law. It was evidently not the intention of the testator that all his grandchildren should take, whether they were living at the death of the testator, or at the period w'hen the legacy would vest. His grandchildren, who had parents living at the time when the legacy vested, would not take, although coming within the very words of the will. It could never be supposed for a moment, that the children of O. Taylor and B. B. Taylor-, who were the testator’s grandchildren, should take under the 9th clause as well as their fathers, who would certainly take as children of the testator. This results from the last clause of the article, where it is clearly indicated that the grandchildren are to take per stirpes and not per capita. Children and grandchildren are mentioned, they being the only persons who would be benefitted by the legacy at the time of the testator’s writing ; but the grandchildren were not to take pa?- capita, and would only receive the share of their deceased ancestor; and if the grandchildren were also dead, leaving issue, the design was that this issue, although not coming within either designation of children or grandchildren, should take the share of the deceased grandchild.

As matters now stand, according to the agreed case in'the bill of exceptions, it is of no consequence to determine w'kether the legacy mentioned in the lltli article of the will be vested or lapsed, so far as the deceased grandchildren, John Hill and Rebecca Gourd, are concerned. These grandchildren left no issue, and their heirs would be the same persons who W'ould take under the statute of Distributions, if the legacy be regarded as lapsed. The eleventh clause directed the proceeds of certain sales, after the payment of debts, to be divided among his children and grandchildren as before directed in article 9th, and according to our views of the proper construction of article 9th, this residuum, whether the legacy be considered as vested or lapsed, would take the same direction which the statute of Distributions would have given it.

In relation to the legacy mentioned in the 7th article of the will, it is clearly a vested one. The testator gives to his grandson, John Hill, a slave named Clark, “to be given into his possession when he arrives at the age of twenty-one years — to him and his heirs forever.” The delivery of the slave is merely deferred on account of the minority of the legatee! The cases are uniform in regarding such a legacy as vested.

There are several other questions presented by the agreed case, of minor importance to the parties in interest, but really of more difficult solution.

1. Does the hire of Clark, the slave bequeathed to John Hill by the 7th article, go to the heirs of J. Hill, or fall into the mass of the estate to be distributed to those entitled under our act of Descents and Distributions ? As a general rule a legacy only carries interest from tile time it is payable’. Davis v. Swan, 4 Mass. 208" court="Mass." date_filed="1808-03-15" href="https://app.midpage.ai/document/dawes-v-swan-6403192?utm_source=webapp" opinion_id="6403192">4 Mass. R. 208. An exception to this rule is, where the legacy is given to a minor whom the testator was under a moral obligation to support, 'and for whose support no other provision was made in the will. This rule of course applies to minor children, and according to some authorities, it equally embraces grandchildren. 14 Serg. & Rawle, 241. No pecuniary legacy was bequeathed to John Hill, but a tract of land and the slave Clark. A fund was provided for raising money to pay off the debts and expenses, and in the surplus of this fund, if any there should be, all those entitled to distribution were to share equally. All the grandchildren of the testator, whose parents were dead, were provided for in a similar mode to that made for John Hill, and the whole tenor of the will indicates the disposition of the testator to make as equal a division of his estate as practicable among those who would under the law have been entitled to his bounty. We consider that the hire of a slave would go to the specific legatee of that slave, whenever the interest of a pecuniary legacy, similarly disposed of would go with the principal. As an ample fund was set apart for debts and expenses, we cannot doubt that it was the design of the-testator to let the specific legacies to his minor grandchildren carry interest, ■where they were money, and that the hire of the slaves (where they were of a suitable age to be hired) should go with the slaves. We find no objection, therefore, to the order of the Circuit Court on this point.

3. What becomes of the hire of the slaves Nell, Tom, &c., mentioned in the eleventh section, and in relation to which the will is silent ? On this point we can see no possible objection to the order of the Circuit Court. It is perfectly useless to inquire whether the hire of these slaves would necessarily go with the slaves or their proceeds, under the circumstances. For the testator has, in the 11th section, made the same disposition of this property which our Statute of Distributions would have made. Whether the hire be considered as disposed of by the same clause which disposes of the slaves, or be regarded as a part of the estate not mentioned in the will, the same result is attained. The order of distribution made by the Circuit Court was right, under either view of the case.

3. The only question remaining to be considered, is the time when the court is authorized to have the slaves mentioned in the 11th article of the will sold, and their proceeds distributed. The rule is that where the period of payment of a legacy is postponed merely on account of the condition of the legatee and the legatee dies before the period arrives, the legacy being a vested one, is payable immediately to the heirs of the legatee. Buf where a legacy is postponed on account of the condition of the estate, the rule is different. Here it is not very apparent what design was in the view of the testator in deferring the sale of these slaves until the time when his grandson, John Hill, should attain 31 years. It would seem that accumulation was not his object, since he made no mention of the hire, but only the proceeds of their sale. It is certain, however, that the payment was not deferred solely on account of the infancy of John Hill; for John Hill was not the only legatee under thiB clause, but all his children and grandchildren. Now three of his children were already heads of families, and so far as they were concerned, John Hill’s minority could not influence the legacy designed for them. I should think it most probable, that the period of John Hill’s majority was selected as the time for disposing of the slaves and paying over the proceeds on account of the condition of the majority of the legatees, who were infants, and the year 1854, was selected as the time when the majority of his grandchildren, perhaps all of them would be at such an age as the testator thought would enable them to make a judicious use of the legacy. It is clear that this reason is not removed by the death of John Hill, before attaining twenty-one. He was one out of seven grandchildren coming within the terms of the provision. We can see no authority then in the Circuit Court to change the period fixed in the will for the sale of the slaves mentioned in the 11th article. With this exception we concur in the construction given by that court to the will. The judgment will therefore be reversed, and the cause remanded, with directions that the order be altered in the 'particular suggested. Judgment reversed.