58 N.C. 359 | N.C. | 1860
The bill is filed by Alfred Moye, executor of James W. Moye, praying a construction of certain clauses in the will of one Cleodicia Nettles.
The controversy arises out of the following clause of the said will: "Item Third. I leave in trust to my brother, Alfred Moye, for the use of my nephew, James W. Moye, negro woman Jane and her child, Laurence, and at the death of the said James I give the said Jane and her increase to such children of the said James as may survive him, as follows: to each child one negro of the increase, should there be sufficient, and the excess, if any, I leave to be divided between my nephews Moses and Elbert Moye; and in case the said James leaves no lawful children, I leave them all to my nephews above mentioned."
The executor assented to the legacy and delivered the slaves Jane and Laurence to the plaintiff as trustee. James W. Moye died shortly thereafter, leaving a will, of which he appointed the present plaintiff executor, and leaving only one child surviving him, the complainant, Abram D. Moye, who is an infant under the age of 21, and the plaintiff Alfred Moye is his guardian.
(360) The slave Jane has had the following increase since the death of Cleodicia Nettles: Henry, Cora (since dead), and Haywood.
The plaintiff claims to hold the slave Laurence, in his capacity of executor, as part of the estate of his testator. He also claims that he has the right, as guardian of the said Abram D. Moye, to elect out of the increase of the said Jane born since the death of the said Cleodicia such child as he may deem most advantageous to the interest of his ward. *285
The defendants contend that the boy Laurence was only bequeathed to James W. Moye during his life, and is included in the bequest of the increase of the said Jane, after the death of the said James W. Moye, to the defendants. They also contend that the plaintiff, as guardian of Abram D. Moye, has no right to elect which one of the children born after the death of the testatrix he will take, but that by the terms of the will Laurence became vested in the said Abram D. Moye, and that he, therefore, is the one indicated to fulfill the bequest, but if this is not so, then he must take the one first born after the death of the testatrix Cleodicia, to wit, Henry.
Cause set for hearing on the bill, answer, and exhibits, and sent to this Court. The woman Jane had no child born between the making of the will and the death of the testatrix, so the question presented in the class of cases to which we were referred on the argument does not arise. We have as an open question, does the word "increase," in the limitation over after the death of James Moye, include the child "Laurence," or is it confined to the children born after the death of the testator?
The ordinary sense of "increase," in respect to a woman, is her children, grandchildren, etc., issue of her body descendants, and we do not think the fact that one of her children (Laurence) is previously mentioned sufficient to show that the word "increase" was not afterwards used in its ordinary sense, so as to include that child as (361) well as all other children and grandchildren, etc., for when the testatrix came to make the limitation over, the word "children" was not appropriate to convey her meaning, and she adopted the word "increase," in the sense of issue of her body descendants, to save the trouble of writing "children, grandchildren, great-grandchildren," as the taker of the first estate might have lived long enough to allow time for her to have numerous descendants, which the testatrix seems to have considered probable.
This construction is supported, and, in fact, made necessary, by the last limitation over, "in case of the death of James without a child, Ileave them all to my nephews above named." "Them all" cannot be restricted to the children of Jane born after the death of the testatrix, but must include Jane and Laurence also; in other words, Jane and her family, and the subjects of the first limitation must be the same as those disposed of by the last. *286
We think the plaintiff Abram Moye is entitled to the woman Jane and toone of her children, of which he is to have choice; he is entitled to this preference because the first limitation is given to him, showing him to be the primary object of the bounty of the testatrix, and the defendants are introduced as secondary, and are only to have what is left after he gets his portion.
The cost will be paid by the executor out of the fund, so as to bear equally upon all as all are interested in having the question settled, and it presented a fair matter of doubt.
PER CURIAM. Decree accordingly.
(362)
