| N.C. | Dec 5, 1833
"Lastly, my will and desire is that the honorable court of my county appoint some fit and proper person or persons to perform this my last will and testament, as I hereby revoke all former wills by me made."
Afterwards, upon the birth of a son, 15 September, 1832, he added the following codicil: "I, John Sherran, of Wake County, do made this codicil to be taken as part of my will and testament, as follows: that is to say, whereas I have by said will given to my wife, Alsey Sherran, fourteen negroes and two tracts of land, including the tracts whereon I live (i. e., my residence), now I do revoke and make void the said legacies to my wife, and I do hereby give and bequeath unto my son, Wesley, half of the said fourteen negroes and tracts of land which I have given my wife, Alsey, by my said will, including a negro girl left out of my former will, by the name of Liz, in the place of a negro man Jim, sold by me since the executing my former will; also half of the residue of my property named in said will and left to my wife. I further give, to be divided, two infant negroes, Marsy and Matsy, born since the executing of my will, between my son, Wesley, and my wife, Alsey.
The widow of the testator, after his death, married the (389) defendant Drury Jones. Administration with the will annexed was committed to the plaintiff. All persons interested under the will were made defendants, and the prayer of the bill was that the plaintiff might be instructed as to its proper construction; Barham and wife contending that there was an intestacy as to half of the legacy given the wife by the will. There was also a prayer for declarations whether the plaintiff by his appointment as administrator became trustee for the wife of Barham; and in what proportions the defendants were entitled to the crops made upon the land of which the testator died seized. *314 The principal question in this case is whether the testator has by the codicil to his will revoked altogether the devises and bequests which he had made to his wife, or has revoked those dispositions only as to the moiety of the property so given, and which moiety is, by the codicil, devised and bequeathed to his son, Wesley. After reciting the devises and bequests to his wife, the words of the codicil are, "Now I do revoke and make void the said legacies to my wife." These words, taken by themselves, leave no room for construction; they express an absolute and entire revocation of "the legacies" referred to, and they must be taken in their legal sense, unless by the context, considered in reference to the nature of the property and the state of the testator's family, they clearly appear to be otherwise intended. But the literal and technical force of words in a will may be counteracted by rational implication; this implication may be collected from other expressions in the will throwing light upon the intention; the state of the testator's family at the time of making the will may, when a rational doubt occurs as to its meaning, be also taken into consideration, and the absurdities, improbabilities, and inconsistencies which arise from a literal interpretation may either furnish or assist in furnishing a (390) sufficient reason to adopt another construction.
We think that in this case there are so many concurring and strong indications that the words above recited were used inaccurately as to authorize us to declare judicially what as individuals we cannot doubt, that the codicil was designed to revoke the gift of property to his wife so far, and so far only, as to make way for the disposition to his child of a part of that property. At the date of the will he had one daughter, and no other child. He makes what he considers an adequate provision for this daughter, and takes care to place this provision beyond the power of her husband, by securing it to her separate use during the coverture, and should she die before him, then to her children; and he gives the mass of his property to his wife absolutely and forever. In the course of a year thereafter a new claimant on his bounty comes into existence. He has a child for whom he had made no provision. Then is this codicil executed, and it is impossible not to see that the primary and sole direct object of the codicil is to provide adequately for this child, and that whatever else is done is incidental and subservient to this purpose. He cannot effect his object without diminishing the gifts to others, and that in favor of his wife furnishes the fund to which he would naturally resort. The mass of his property had been given to her; the being to be *315 provided for was her child as well as his; she had lost none of her hold on his affection because of this new link of their union; but it was fair that she should divide with her son the liberal bounty of her husband. Accordingly, he leaves the disposition made with respect to his married daughter wholly untouchd [untouched] — neither increases nor diminishes its amount, nor changes the modifications for its safe enjoyment, but gives to the infant son half of the negroes and lands given to his wife by the will, and half also of all the residue of the property thereby given her, including the beds, chest and tables, cattle, hogs and sheep. The codicil is silent as to the disposition of the other moiety of this property, and if we are to understand him as revoking in toto the devises and bequests to his wife, he meant to die intestate as to this moiety. He must have known that in that event it would (391) become distributable by law. If the meaning of the codicil be ascertained, however inconsistent its provisions, they must have effect, but it is almost impossible to believe that a rational man intended this partial intestacy; that after giving a moiety in express terms to his son, he intended that this son should also take a half of the other moiety; that he intended that the husband of his daughter, whom he had excluded from the power of deriving benefit from all which he had expressly given to his daughter, should be able to possess himself of the other half of this moiety; that he intended such subdivisions to take place in negroes, tables, chests, beds, and all the et cetera of perishable articles; and that he meant, as a full and adequate provision for his widow, in lieu of dower and distributive share, when he well knew she could dissent from his will, an undivided moiety of two little negroes, the eldest not more than a year old! It may be questioned, however, whether the absurdities of this supposition would of themselves be sufficient to overrule the literal meaning of the words of revocation, inasmuch as of themselves they do not distinctly point out the true meaning of these words, nor the extent of such revocation. But the codicil itself demonstrates the testator's meaning as satisfactorily, I think, as though it had declared such meaning in appropriate terms. The testator takes notice that he had sold one of the negroes named Jim, left to his wife by the will, and that he has a negro named Liz, which he had left out of that will altogether. He therefore adds in this codicillary bequest to his son, after the gift of a half of the lands and negroes left by the will to his wife, these words, "including the negro girl Liz, in the place of the negro man Jim." The obvious inference to be drawn from these expressions is that the gift in that will was not entirely made void by the codicil, nor so regarded by the testator, but was recognized as still subsisting, and revoked so far, and so far only, as to give way to the dispositions made by the codicil. Here, too, we may remark that the *316 (392) testator, perceiving that he had omitted to dispose of the negro Liz by his will, undertakes to supply that omission by his codicil. It is conceivable that in performing this undertaking he should give half of this negro, intending to leave the omission unsupplied as to the other moiety? Consider the bequest to his wife revoked only so far as it conflicts with the disposition to his son, and the substitution, or, as he terms it, the "including" of Liz in the place of Jim renders the whole consistent and rational. But after all this follows another bequest which ought to remove any lingering scruple as to the testator's intention. Two children had been born of the negroes given by the will to his wife, since the date thereof, and of course would not pass by virtue of that bequest, as modified by the codicil, to his wife and the infant child along with the parent stock. To avoid this inconvenience, and to secure to her and her child this fruit of the principal donation, he adds: "I further give to be divided two infant negroes, born since the execution of my will, between my son, Wesley, and my wife, Alsey." The cases of Edleston v.Speaks and Onions v. Tyrer, Show, 89, 1 P. Wms., 343, have decided that where an express revocation is made of a previous testamentary disposition, and in the revoking instrument another disposition is made, and the court can discover that the object of the revocation is to make way for this second disposition, if this cannot take effect, there shall not be a revocation. The principle of these decisions bears us out, I think, in interpreting the express words of revocation here as extending no further in the intent of the testator than making way for the substituted disposition, in the same manner as though he had, after the revoking clause, inserted the words, "that is to say, as follows":
The crops growing upon the lands devised by the testator, according to the construction which the Court has given the will and codicil, passed with the lands to the devisees.
The defendants Drury Jones and wife, being tenants in common with the defendant Wesley Sherran, are accountable to this defendant (393) for a moiety of the profits made by the use of the common property.
The plaintiff by accepting the appointment of administrator with the will annexed of the testator has become a trustee for the defendant Polly Barham to the same extent as if he had been nominated executor in the will, and had accepted of the appointment.
The Court has not been called on by the parties further than to declare its opinions upon these questions. This declaration will be made, and the parties may then proceed as they shall be advised.
PER CURIAM. Decree accordingly.
Cited: Creech v. Grainger,