7 N.C. 21 | N.C. | 1819
The brothers and sisters of the half blood of the maternal side to William Salter, who died intestate, have filed this petition by the guardian, to obtain an account and distribution of the part of the intestate's personal estate, which he acquired under the will of his father, Richard Salter. The three children of the testator survived him, and afterwards, Mary died under age and without issue, leaving of the whole blood, her brother William and her sister Sarah; and of the half blood, Alexander and John, her brothers, and Eliza, her sister, surviving: Then William died under age, and without issue, leaving the preceding brothers and sisters (23) surviving.
It may be conjectured, that the testator meant to confine his bounty to his three children and their descendants, if they should have any: And that upon the death of two under age and without children, the whole of the negroes should belong to the surviving brother and sister: That while any one of his children was alive, no other collateral relation of those who were dead should share with the survivor; and least of all, could the testator contemplate that the children of his widow by a future husband should be entitled to share with the surviving child. If a Court were at liberty to judge of the testator's intention, deduced from circumstances out of the will; and by giving to words in the will a construction in opposition to that which has been affixed to them by a series of decided cases, the considerations which have been mentioned, might probably in this, as well as in other instances, meet the justice of the case: but then it would put an end to the certainty of the law and the security of property. For while Judges may find out by industry the rules of interpretation established by law, their speculations, as to the intent of the testator, may differ; no legal opinion could be given on a will, by which so much litigation is now prevented; and it would be impossible to pronounce who was the owner of property claimed under a will, until the decision of this Court could be had on the question. A state of things so pregnant with mischief ought to be carefully avoided by a Court established for the purpose of testing by legal principles the adjudications of other tribunals: Yet it would be difficult to state a case in which a decision for one party would be in resistance to a stronger current of authorities than would be a decision for the defendant in this case. *24
The rule is, that where legacies are given to three or more persons as tenants in common, with a bequest to the survivors upon the death of any of them within a given period, the original legacies only, and not those shares which (24) accrued by survivorship, will survive, because such accrued shares, vesting in the surviving legatees in distinct proportions, proper words are necessary to make these shares survive with the others. This had been decided in relation to real property in Woodward v. Glascock, 2 Vern., 388), and in chattels, in Rutge v. Bunker, (Forrester 124,) and Perkins v.Micklethwaite, (1 P. Wms., 274). The reason of these determinations is, that the share accruing by survivorship vests in the surviving children by distinct shares, and not in them as joint tenants. In the case before us, the surviving share is directed to be divided between the other two children; and inRutge v. Bunker, the Master of the Rolls says, "share and share alike" are equivalent to the words "equally to be divided." In the case ex parte West, (1 Bro. C. C. 575), before Lord Thurlow, the words of the will were "I leave to A. B. C. sons of Arthur Scaife 1000 l. each, the interest to be added to the principal yearly, until they shall respectively attain the age of twenty-one-years: and in case any of them shall die before that age, then to the survivors." A. died, and then B. both under the age of twenty-one. The question was, whether that part of the share of A. which survived to B. upon the death of A. survived afterwards to C. upon the death of B? Or whether B's original share only survived? The Judge thought it a natural construction, that the word "share" in the case cited, Rutge v.Bunker, would take in the survival part as well as the original share; and consequently, the whole ought to survive: but he could not so decide without contradicting cases expressly in point; and, not being able to distinguish the case before him, he decreed that the survived part did not survive: expressing, at the same time, a wish to reconsider his opinion. In consequence of what fell from him, the same case was afterwards brought on before the Master of the Rolls, Lord Kenyon, whose decree corresponded with the former ones. From a belief that (25) an adherence to the rule generally disappointed the intention of testators, one case which, at first view, would seem to come within it, has been excepted from it, by reason of the peculiar penning of the will; but Lord Hardwicke, who made the decision, recognized the rule itself in the fullest manner — The material words of the will were, "I give the residue of my personal estate to my brother and sisters, Charles, Mary and Elizabeth, and the sisters of my late wife, Martha and Rebecca *25 Paine, to be equally divided among them, share and share alike; and in case of the death of my brother or any of my sisters, or wife's sisters, before me, or the survivor of my father and mother, I do appoint his, her or their shares to be divided among the survivors of them." Charles died in the testator's lifetime, but after the making of the will: Mary and Elizabeth, the testator's sisters, died in the lifetime of the testator's mother, who survived her husband, but was then dead — The bill was brought by Martha and Rebecca Paine for the residue of the estate — It was decided that the accumulated shares of the persons who were dead, survived as well as the original ones; and the course of reasoning employed was, that there was an express direction that if any should die before the testator, his or her share should survive to the others; and the share of the one dying before the testator, would not have survived at all, but for this clause; it would have been an undisposed part of the testator's estate — Then if another had died in the testator's lifetime, the original fifth of him who died second, as well as the share which survived to him on the death of the first, would have gone over likewise — Therefore, the testator meant that the accumulated as well as the original, share should survive, and a different construction cannot be put on the word share in one case than in the other (Paine v. Benson, 3 Atk., 78). It must be acknowledged that the reasoning inPayne v. Benson went very close to the wind to steer clear of a rule that was though to militate against the (26) testator's intention; but admitting the case to be well decided, (which was subsequently doubted by Lord Thurlow in the case of West, ex parte) yet it is not an authority for the Defendant in the case before us, in which the foundation is wanting on which the Chancellor built the whole of his reasoning. For if either of the children had died before the testator, the share given to him or her would have lapsed; and the case cited turned upon the necessity of giving to the word "share," the same meaning when applied to the accumulated share, which it had when applied to the original one.
The only distinct exception to the rule is, where the fund is left as an aggregate one, and made divisible among many per sons as legatees, with benefit of survivorship among them. (Worlidge v. Churchill, 3 Bro. C. C., 465.) The Judge, in giving his opinion, relies upon Rutge v. Bunker to shew that the rule was not thought to apply to an aggregate fund; and deduces from the will proofs from particular expressions, that the testator meant to keep it as an aggregate fund. Having examined all the cases relative to this question, with attention, *26 we are bound to decide that the petitioners are entitled to divide with defendants that share which William acquired by the death of Mary.
Cited: Spruill v. Moore,
