| N.C. | Jun 5, 1840
"Item. I lend unto my well-beloved wife the land and plantation whereon I now live, during her natural life, and the plantation utensils, etc.; also I lend unto my well-beloved wife, during her natural life, the following negroes: Jacob, Truce and Patt, and their increase." And then, after making several specific bequests to his children, the testator proceeded: "It is my will and desire that all my negroes that I have given away and lent should be kept together on my lands, and put under the (62) care and direction of my son, Lewis Cotton, for which service and trouble it is my desire to give him the one-fourth of everything he can raise and make until he marries; also the negroes which I have not given away to be included among them; and in case any accident should befall my son Lewis, it is my desire that my son Cullen should take his place, if my executors think he is competent to manage the estate, and turn it to the same advantage that my son Lewis has done; and that my son Lewis shall have the care of the estate until my son Cullen come of the age of twenty-one years; and as my children shall come of the age of twenty-one years, or marries, it is my desire that they shall have their legacies already given away. Item. It is my will and desire that if any of the children's legacies or negroes should die before the residue of my estate is equally divided among them, that it should be made good out of the property that is still remaining, not given away. Item. It is *45 my will and desire that my wife and children shall have the use of my land and plantation lying on Roanoke River, for six years, or until the year 1808; and if my wife should die before that time, it is my desire that an equal division of all my estate that is not given away should take place and be equally divided among my children then living at my wife's death, or the time above stated, after paying all my just debts: that is, lands, negroes, etc."
The bill stated that the testator left surviving him his widow and eight children, all of whom continued alive until after the year 1808; that the widow died in the month of December, 1838, before which time five of the children had died, four of whom only left children; that at the death of the widow, three only of the children were alive, and that of the four who had died leaving children, three only had children then living; that of the three children of the testator alive at the death of his widow, one (a daughter) had intermarried with a man by the name of Higgs, who died in January, 1839, without having reduced into possession the share of his wife in the remainder of the negroes limited to the testator's widow for life. The bill then represented that three different modes of dividing and distributing the property in his hands, which consisted of the slaves that had been given to the testator's wife for life, had been (63) urged — that is, one for a division into three shares, another for a division into six shares, and a third for a division into eight shares; and the direction of the court was asked as to which mode was correct. The advice of the court was also asked whether Mrs. Higgs or her husband's representative was entitled to her share of the said negroes.
The defendants, who were the living children and the representatives of the deceased ones, answered the bill, and, admitting the facts stated in it, contended for their respective interests. The subject of this controversy is the remainder or reversion in the slaves lent by the testator to his wife for life. The cause has not been argued, and from the pleadings it appears to be the opinion of all parties that the will disposes of the remainder in the slaves to the testator's children as a contingent interest. The question made is whether the remainder vested in those who were living in 1808 — that is to say, all the children — or only in those three who survived the wife. *46
If we thought that the last clause in the will operated on this remainder, yet we should be of opinion that the legacies became vested in 1808. In the previous parts of the will the testator lends to his wife his manor plantation, these slaves and other things, and gives to each of his children specific legacies of slaves and other articles. He then directs "all the negroes which he had given away or lent," and also "all those which he had not given away," to be kept on his lands and worked upon certain specified terms; and he adds, "As my children shall come to the age of twenty-one years, or marry, it is my desire that they shall have the legacies already given away." Thus far the negroes not specifically bequeathed remain to be the subjects of a residuary clause, or to be left undisposed of. Then comes the last clause, as follows: "It is my will that my wife and children shall have the use of my plantation, lying on Roanoke, (64) until the year 1808; and if my wife should die before that time, it is my desire that an equal division of all my estate that is not given away should take place among my children then living at my wife's death, or the time above stated — that is, land, negroes, etc." There are two questions upon this part of the will — the one, what part of the property is disposed of therein? The other, to what person is it given? Upon the second, we think it plain that the gift is to those children who might be living at the period of the division, and that period is the year 1808 or the death of the wife, whichever should the sooner happen. As the family was to have the use of the land as a joint fund until 1808, and no longer, the division cannot be postponed beyond that year. It must take place then, at all events. Then the other parts of the clause must be taken as providing for an earlier division in a certain event. The testator had no object in keeping his estate together after the death of his wife; therefore he declares that if he should die "before that time" — that is, the year 1808 — there should be an equal division among the children then living at his wife's death. If he had stopped there, the construction would seem to be unavoidable that the wife's death, here meant, was that mentioned just before, namely, her death before 1808, and not at any indefinite period. But the testator goes on to remove every doubt that might be raised on the phraseology — "then living at my wife's death," if it stood alone — by adding, "or the time above stated" — that is to say, the same year, 1808. "Then living," therefore, refers to the one or the other of those periods, and, of course, to that which should arrive first. Consequently all the children would take, as none died until 1817. *47
But to us it appears that, in the event that has happened, the will does not operate at all on these negroes, except as they are charged with making good the slave bequeathed to one of the children which died. We have just said that the division specified in this clause is one which must be made in 1808 at the latest. Therefore no property is within the purview of this part of the will but such as the testator meant should then be divided among his children at all events. Now, we think it indubitable that he did not mean the negroes which he had (65) lent to his wife for life should then be divided, if she were still living. The wife was not to be left destitute after 1808, for the loan is for her life, however long that may be. Hence his language is, if his wife should die before that time, 1808, then "all his estate not given away should be divided among his children." But if she should not die until after 1808 — which has turned out to be the fact — then the will is silent as to the reversion of the negroes bequeathed to her, and consequently there is an intestacy as to them. As a surplus undisposed of, it vested in the executor, in trust for the next of kin, upon the death of the testator; subject, however, in case the wife had died before 1808, to be divested and divided, under the will, among the children then living.
As to the question between Mrs. Higgs and the administrator of her late husband, there is no doubt. Being in the nature of a distributive share, not received by the husband, but remaining a chose in action at his death, this interest survives to the wife. Carr v. Taylor, 10 Ves., 578.
PER CURIAM. Decree accordingly.
Cited: Burch v. Clark,