Pace v. Bonner

27 Ala. 307 | Ala. | 1855

CHILTON, C. J.

The slave, Moses, is the only one of that name owned by the testator, and he is the child of Jin-ney, who is given by the second clause of the will to the testator’s daughter, Emily. Moses, then, is given to Emily by the second item' as one of the children — “ the increase she (Jinney) now has” — and by name to Madison, the plaintiff; and as it is. allegéd that the two bequests are repugnant, the plaintiff insists that the last to Madison must stand, and that consequently the first is void. The primary court so ruled the law to be.

There seems to be much conflict of authority on this subject, both in England and in this country. Lord Coke says,— “Also, in one will, where there are divers devises of one thing, the last devise taketh place. Cum duo inter se pugnantia repe-riuntur in testamento, ultimum raium est.” — 2 Thomas’ Coke, (ed. 1836) top p. 525. The annotators upon Coke, in a note to this passage, say : “ The opinion supported by the greatest number of authorities is, that the two devisees shall take in moieties.”

It is, however, unnecessary for us at this time to collate the cases pro and con. upon the question, since they are generally agreed, that the rule which sacrifices the former of several contradictory clauses is never applied but on the failure of every attempt to give to the whole such a construction as will render every part effective. To this end, clauses and sentences may be transposed, if by such transposition the court may give effect to the intention, and deduce a consistent disposition from the entire will. — 1 Jar. on Wills, (2 Amer. ed.) p. 396-7, top. As an illustration of this rule, the author just quoted observes, — “.So, where testator, after devising the whole of his estate to A., devises black acre toJB., the latter devise will be read as an exception out of the first, as if he had said, ‘I give black áci'e to B., and subject'thereto, all my estate, or the residue of my estate, to A.’ ” — Cuthbert v. Lempriere, 3 Maul. & Sel. 158. The case before us is strikingly analogous to the case cited by way of illustration. Here, the testator gives a negro woman slave, and all her present and future increase, to Emily, and then gives Moses, one of such increase, to his son Madison. The last specific bequest of one of the slaves must be regarded as an exception out of the general bequest of all the woman’s increase, and the will must be read as though the testator had said, ‘ I give Moses to Madison, and subject to this bequest, I give his mother, with all her present and future increase, to my daughter Emily’. This construction gives effect, we think, to the true intention of the testator. The other children of Jinney then born pass under the will to Emily ; and Moses, who is given by name to Madison, is excepted out of the increase, and passes to him.

Such being the view we entertain of the will, it follows that we sustain the ruling of the Circuit Court.

Judgment affirmed.