Harrison v. . Ward, 58 N.C. 236

Harrison v. . Ward

58 N.C. 236 | N.C. | 1859

The questions presented in this suit arise on the construction of the will of Lemuel H. Simmons. The clauses of the will material to the consideration of the points submitted to the court are as follows:

Fourth. "I give to my daughter Mary Ann Simmons all my right, interest, and share in the Buckner Hatch Mills held in common with John Oliver, two beds and furniture, and an equal share with my children of my slaves, and a share of my perishable estate after my debts are paid; and on the marriage of my said daughter Mary Ann Simmons said property mentioned in this clause of my will to be held by my said daughter and her husband during their joint lives and the life of the survivor, and at the decease of the said Mary Ann and her said husband to be equally divided between the children of my said daughter who may survive their said parents and be living at their death; but should my daughter and her husband die and leave no child or children of the said Mary Ann living at the death of the said Mary Ann and her husband, then I give the said lands to my heirs at law and the said slaves and their increase to my next of kin."

Sixth. "Item: I give and devise to my son Benjamin Franklin Simmons all my lands not already given away and devised in this will; also an equal share of my slaves with my other children, (237) and a share of perishable estate after my debts are paid; and should my said son marry, the said lands and other property to be held by my said son Benjamin and his wife and the child or children of the said Benjamin surviving their parents, upon the same terms and subject to the same uses, conditions and limitations mentioned in the devise to his sister, Mary Ann Simmons."

Mary Ann Simmons married one Richard Oldfield, and died in the lifetime of the testator, leaving no children, but leaving her husband surviving her. (As to the disposition of her share, see Simmons v. Gooding,40 N.C. 382.)

The defendants Maria and William E. are the children of a daughter Elizabeth, who died in the lifetime of the testator, and are expressly provided for in another clause of the testator's will. They are minors and represented in this Court by their father, who is their guardian.

Benjamin F. Simmons survived his father, and having held the land and slaves given to him until the year ____________, he died intestate, without having married and without child or children.

The plaintiff Emily is the daughter of and only surviving child of the testator Lemuel H. Simmons. She intermarried with the plaintiff F. B. *194 Harrison, and they two, with William Foy, who administered on the estate of Benjamin F. Simmons, bring this suit, praying the Court to declare their rights under the will in order that the share and interest of Harrison and wife may be paid to them under a decree of the Court and the administrator may be protected in his disposition of the personal estate in his hands.

It is contended on the part of Harrison and wife that on the death of B. F. Simmons without leaving a wife or child, the land devised to him under the limitation in L. H. Simmons' will goes one-half to Mrs. Harrison and the other half to the defendants Maria L. and William E. Ward jointly as the heirs at law of the testator, and that the slaves go to them (Harrison and wife) under the limitation in the said (238) will to the next of kin, which they contend means nearest in degree to the testator.

The answer of the defendants was filed, not contesting any of the facts as above stated, but contending that they are entitled to a share of the slaves as well as of the land. It is quite clear to our minds that it was intended in this will to limit over the estate given to Benjamin F. Simmons in the same way mutatismutandis as that given to the daughter Mary Ann.

The testator bequeaths in the fourth paragraph property, real and personal, to his said daughter; and on her marriage, to herself and husband jointly and to the survivor, and after the decease of both, to the children of the marriage which may be then living; and if there be no children left, the land is given to the heirs at law and the slaves to the next of kin. In the sixth paragraph he proceeds to give in the same terms real and personal estate to Benjamin F. Simmons, and provides: "should my said son marry, the lands and other property to be held by my said son and wife and child or children surviving upon the same limitations mentioned in the bequest to his sister Mary Ann." It is obvious, upon a consideration of the latter clause, the testator intended to trammel the property given with similar conditions and limitations to those set out at length in the bequest to his daughter, for although different words were used in speaking of the first contingency, upon which there is to be a change in the holding, the phrases used seem to be equivalents in meaning, and the purpose seems to be clear to put the two upon the same footing in all respects.

When the will was in this Court before for construction (Simmons v.Gooding, 40 N.C. 382) it was settled with respect to property given *195 to Mary Ann Simmons (she having married and died without (239) children in the lifetime of the testator), that although the legacy to her lapsed and her husband, who survived, took nothing, yet the bequest over of the land to the testator's heirs at law and the slaves to his next of kin stood "and the heirs at law and next of kin of the testator took by purchase as devisees and legatees." This decision is based upon the assumption that the vesting of the particular estate was not necessary to support the ulterior executory bequests. We think the principle assumed is clear. It seems to be also equally clear that the bequest over was not dependent upon the happening of any intermediate contingencies — for instance, the marriage of the daughter, for if she had survived her father unmarried, she would have taken immediately an estate for life, subject to be enlarged so as to take in a husband upon marriage, remainder over to children, if any, and if none, then the land to the heirs at law and the slaves to the next of kin. The rule of construction in such cases is that a limitation over is never dependent upon the vesting of a prior estate unless there be a clear intention expressed to that effect. The ordinary intendment to be inferred from such limitations of estate after estate in succession, in the absence of any manifest purpose to the contrary, is "that they shall respectively take effect whenever the prior estates are out of the way, without reference to the manner in which they get out of the way." 2 Wills Exrs., 764.

By reference to the contents of the will, its particular intendment will be found, we think, in accordance with the general, instead of opposed to it. If any purpose is more plainly manifested by the testator than another, it is not to vest in any of his children an absolute estate, but to tie up the property at least during their lives and the lives of the grandchildren during minority. If we adopt the construction contended for in the answer of the defendants, that the ulterior bequests are dependent upon the happening of any of the contingencies upon which the estate is recast, it follows, if the contingency should not happen, the prior estate would necessarily be an absolute one, and this is an event which the testator seems particularly to have guarded against. Not one of the first takers, under any bequest in the will, takes (240) an absolute estate by express provision.

From a careful analysis of the clauses in question, we are of opinion, then, if the daughter Mary had survived and died unmarried, and, of course, childless, her estate would have been one only for life, and upon her death the executory bequests over of land and slaves to testator's heirs at law and next of kin, respectively, would have taken effect. No good reason can be given why the testator should desire to make a distinction between the cases of a child dying without having issue and *196 dying without marrying — why one should give life to the ulterior limitations and the other be the signal of their extinction.

As the law would have been in respect to the bequest to Mary Ann Simmons upon the supposition made, so it must be in a similar state of facts in respect to the estate of Benjamin F. Simmons. We are of opinion he took under the will of the father a life estate, subject to be enlarged as before stated, and upon his death unmarried the contingent bequest to the testator's heirs at law and next of kin took effect. This is the answer to the first point upon which the advice of the Court is sought.

The second point involves simply an interpretation of the words "next of kin" in the ulterior limitations to Mary Ann and Benjamin F. Simmons. This can hardly be considered an open question in this Court, for when the will was before the Court upon the former occasion it was decided that these words meant nearest of kin, and that there was no right of representation springing out of their use in this connection, as in the statute of distribution. The interpretation of these words has troubled the Courts not a little, but after some fluctuation and much doubt the ordinary grammatical sense has been adopted as the rule of construction unless it shall appear from the other parts of the instrument that a different meaning was intended. This is the sense, it is believed, which has been given to these words in every connection, (241) save in the statute of distribution; as in the statute prescribing who shall be entitled to administration, next of kin has been, we think, uniformly held, both in this country and in England, to mean thenearest in degree, and to exclude persons who claimed in the next degree by representation.

In the case of Simmons v. Gooding, supra, the Court felt constrained by the weight of authority — and we now feel constrained by that and the force of our own decision — to hold the words next of kin in the will in question to mean the nearest in degree, and that the sister of the deceased brother Benjamin will take the slave property limited to him for life to the exclusion of the nephew and niece.

The able argument which has been addressed to us upon this point has caused us to consider it again more at large than we might otherwise have done, and we are again brought to the same conclusion. We do not feel at liberty to depart from the construction heretofore adopted — a construction, it may be added, which has the sanction of the most eminent Judges, Thurlow, Eldon, Grant, Plumber, and others. Those who are desirous of examining the authorities upon this vexed question will find them referred to in 2 Jarman on Wills, 38.

The construction which we thus put upon the will may disappoint the expectations of defendants' friends and work a case of hardship not *197 foreseen and not desired by the testator, but it cannot be otherwise without unsettling again the sense of words which it has given the Courts great trouble to fix and which the public interest now requires should remain so. Misera est servitus ubi jus est, aut vagum, aut incognitum.

The real estate limited to Benjamin for life will pass over to the heirs at law of the testator, who are the sister, Emily Harrison, and the two children of the deceased sister, Elizabeth Ward — Mrs. Harrison taking one moiety and the children, in the right of their mother, the other moiety.

PER CURIAM. Decree accordingly.

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