42 N.C. 184 | N.C. | 1851
The facts of this case are thus stated in the pleadings. David Hinton departed this life in 1850, having first made and (185) published his last will and testament, which was duly admitted to probate. In and by his said will he bequeaths and directs, among other things, as follows: "Thirdly, I desire that all the residue of my negroes may be divided into two equal parts, and in this division I wish my said negroes may be kept in families, as far as may be practicable. One-half of said negroes I give and bequeath to my grandchildren Jane Francis, Robert and John Lewis, to be divided between them as follows, viz.: In the first place one thousand dollars worth of said negroes or more to be set apart to my granddaughter, Jane Francis Lewis, and after they shall be so set apart the remainder of said negroes to be equally divided between my said granddaughter, Jane Francis, and my said grandsons, Robert and John Lewis, it being my intention to give my said granddaughter, Jane Francis, one thousand dollars more in negroes, or more than my said grandsons, Robert and John Lewis, as she inherits no part of her father's lands. Fourthly, should either of my said grandchildren, Jane Francis, Robert or John, die before arriving at the age of 21 years, unmarried and without leaving a child or children living at his or her death, I desire that the share of the one so dying shall go and belong to the survivors or survivor of them, and should all my grandchildren die, before arriving at the age of 21 years, unmarried and without leaving a child or children, or the issue of such, living at the death of the survivor of them, I then leave the half of the negroes hereby *134 bequeathed to them, to such person or persons as may be my next of kin, according to the statute of distributions.
Jane Francis, the legatee named, intermarried with _____ Erwin, and died in the lifetime of the testator, after arriving at the age of 21 years, without leaving any child surviving her.
This bill was filed by the executor of David Hinton, praying (186) the advice of the Court as to the proper construction of the will. And the question was, whether the legacy to Jane Francis became vested in the brothers, who survived her, or whether it was a lapsed legacy, so that the property bequeathed went to the next of kin of the said David Hinton. According to the English authorities, if a legacy be given to A and B, they are joint tenants, and by the right of survivorship, if A dies in the lifetime of the testator, B takes the whole. But, if it be given to A. and B, to be equally divided between them, they are tenants in common, and there is no right of survivorship; so that if A dies in the lifetime of the testator, his is a lapsed legacy, and B has only the one-half.
In this case, the testatrix directs a division between the legatees, Jane, Robert and John Lewis, as tenants in common, and he adds a provision for survivirship [survivorship]. This survivorship, however, is not absolute and unqualified, but is to take place only in the event that one of the three dies before arriving at the age of 21, unmarried and without a child living at the time of his or her death.
If Jane had survived the testator, her brothers, Robert and John, would not have been entitled to her share; because she had arrived at the age of 21, which event excluded the right of survivorship, as provided for in the will. Allow to them the same right of survivorship, so as to prevent a lapse of the legacy intended for Jane, she having died in the lifetime of the testator, they can take nothing under that right, because it was only to have effect in the event of her dying before arriving at the age of 21, which event did not occur; and, therefore, the (187) survivorship provided for in the will, did not arise, and the part intended for her is consequently undisposed of, and passes under the residuary clause — one-third to Charles L. Hinton, one-third to Robert and John Lewis, representing their mother; and the other third to the children of Mrs. Miller.
It is not necessary to advert to the fact, that Jane not only arrived at the age of twenty-one, but married; which is another circumstance *135 to exclude survivorship; nor to the fact, that, in the division, she was to have one thousand dollars more than her brothers. This has no bearing on the question of survivorship.
Our attention was called in the argument to the case of Petway v.Powell,
It may be, that, if the testator had foreseen this result, he would have provided for it. All that we can do is to construe the will according to the legal import of the words used.
PER CURIAM. Decree accordingly.
(188)
