41 N.C. 173 | N.C. | 1848
Matthew McCorkle died in 1844, and by his will, duly made and proved, directed the whole of his negroes to be valued and not sold, and to be divided as follows: one-seventh to Charles Beaty, one-seventh to Betsey Selina Little, the wife of George Little; one-seventh to Sarah W. Sherrill, wife of Theophilus Sherrill; one-seventh to Elizabeth B. Sherrill, wife of Elisha Sherrill; one-seventh part to Rebecca W. Milligan; one-seventh part to Martha Milligan, and one-seventh part to Gilbert A. Milligan. The above legacies are contained in the first eight clauses of the will. Clause 9 is as follows: "9. My land and stock of all kinds, household and kitchen furniture and farming tools, and all my corn, wheat, oats, and fodder, to be sold at public sale; all my just debts to be paid out of the proceeds of the sale." By clause 10 the testator directs that "After my just debts and funeral expenses are paid, if there be anything left from the proceeds of the property that is to be sold, I *132 will that Caroline Loftin, Thomas Loftin, Frank Loftin, and Selina Loftin get $50 each." Clause 11 is as follows: "I give and bequeath to Jane Rebecca Robinson $50 out of the proceeds of the property to be sold. If any left afterwards from the proceeds of the sale, to be equally divided among all my devisees." The bill alleges that, over and above the property mentioned in the will, the testator died seized and possessed of a large estate, both real and personal, and that Betsey Selina (175) Little died before the testator, whereby the legacy to her lapsed and fell into the general estate. It further alleges that the plaintiff, together with the defendants Charles Beaty, Rebecca Milligan, Martha Milligan, are the next of kin and representatives, as such, of the testator, and entitled each to one-eleventh part of the whole of the personal property, and the money arising from the sale of the land directed to be sold, after paying all the debts of the testator, and also the legacy of Betsey Selina Little, and that more than ten years had elapsed since administration with the will annexed had been granted to the defendant Elisha Sherrill. The bill charges that as to the lapsed legacy, and all the property not mentioned in the will, the testator died intestate, and that it passes under the law to his next of kin.
The answers admit the facts set forth in the bill, as to the death of Matthew McCorkle, the making of his will, etc., but deny that the testator died intestate as to any portion of his estate. They admit the death of Betsey Selina Little before that of the testator, and that she was the niece of the testator, but aver that she left seven children, who are next of kin, and entitled to one-seventh part of the sales of the negroes directed to be sold by the first clause of the will, and the legacy to their mother did not lapse, but that, if it did, it passed under the residuary clause contained in the 11th item of the will, to the legatees in the will, under the word devisees. The bill prays an account, etc., and the cause is set for hearing on the bill and answers.
It is required of the Court to put a construction upon the will of Matthew McCorkle, and thereby ascertain whether the testator died intestate as to any part of his property, and what property passed under the residuary provision of clause 11 of the will, and to whom. By the first clause of the will the whole of the negroes of the deceased are directed to be valued and divided into seven parts, and one-seventh part is given to Betsey Selina Little, who died before the testator, leaving seven children. One question submitted to us is, what effect the death of the legatee, before the testator, has upon the gift. There can be no doubt upon it. The legacy lapsed, and if there be in *133
the will a general residuary clause, it sinks into and passes under it. If there be no such residuary clause, it is undisposed of by the will. The testator dies intestate as to it. It passes to the next of kin. The case is not governed by sec. 15, ch. 122, Rev. Stat. That is confined to a bequest to the children or the child of the testator. Betsey Selina Little was his niece. The whole question as to the lapse of the legacy was decided in Johnson v. Johnson,
We are clearly of opinion that the word "devisees" means "legatees," as used by the testator McCorkle, and that the bequest is not void for uncertainty. But we do not agree that, under the residuary provision of clause 11, the lapsed legacy of Betsey Selina Little passed to the other legatees. It is not a general, but a special, residuary clause, and nothing was intended to pass under it but the residue of the money arising from the sale of the property directed to be sold after the payment of the debts. The words are precise and unequivocal as to this question: "If any left afterwards from the proceeds of the sale, to be equally divided," etc. Now, nothing is directed to be sold but the property mentioned in *134
clause 9. It cannot, then, embrace the lapsed legacy. Bradley v. Jones,
We are of opinion, then, that the legacies of the negroes in the will of Matthew McCorkle to Betsey Selina Little lapsed in consequence of her death before the testator, and nothing passed under it to her children. (2) That the legatees, as such, take no portion of the said lapsed legacy, but, as to it and the other property of the testator not mentioned in the will, Matthew McCorkle died intestate. (3) That in the residuary provision of clause 11 of the will the legatees are meant under the term devisees, but that they, as legatees, do not take any portion of the money on hand, or other personal property not disposed of in the will. (4) That the undisposed personal property of Matthew McCorkle, as well the lapsed legacy as the money on hand, notes and accounts, etc., constitute the primary fund for paying the debts, and what money may remain after such purpose is answered is to be distributed among the next of kin of the testator. (5) It appears from the will that a portion of the property directed to be sold was land, and we have declared that Betsey Selina Little, to whom, under the name of devisee, a portion of the proceeds are given, having died, her portion lapsed. But that portion of the proceeds of the land does not go to the testator's next of kin, but to his heirs at law.
PER CURIAM. Decree accordingly.
Cited: Lane v. Bennett,