55 N.C. 494 | N.C. | 1856
This bill was filed by the plaintiffs, as executors of the late James Patton, praying the Court that an account might be taken, under the instructions of the Court, and the whole estate settled finally, so that they might be discharged of the trust imposed by their testator's will.
Among the other clauses in the will of James Patton, is one (item 13) which is as follows: (495)
"Believing that it would promote the interest of all my family, I concluded, upon the 24th of September, 1827, to commit to my son James the entire management of the estate. I estimated my personal property to be of the value of forty-five thousand dollars, and determined that he should pay out of it such legacies as I might bequeath to his brothers and sisters; and that so much of the original fund, together with the accumulation made by his care and management, as might not be exhausted by the payment of legacies, should ultimately be given to him. From that period to this, he has conducted my business to my entire satisfaction — has paid to his brothers, John and Benjamin, in discharge of their legacies, and in partial payments to his sisters, the aggregate sum of thirty-six thousand seven hundred and forty-four dollars, ($36,744.) In compliance with my original intention, and to enable him to pay the several legacies herein mentioned, *408 and to perform faithfully the many important trusts which will devolve upon him, I give him all my personal estate not herein before specifically bequeathed, with the exception of the house-hold and kitchen furniture, stock, crop and farming utensils at my farm on Swannanoah, which I give to my son Thomas."
In the next clause of his will, (item 14,) the testator bequeaths, among other things, as follows: "Of the legacy to my daughter Anne, (Mrs. Anne E. Smith,) I direct that two thousand dollars shall be paid by my four sons, (James W., John E., Thomas T. and Benjamin,) in equal proportions — $500 each — out of the legacies to them given."
By virtue of the power and authority given to his son James W. Patton, on the 27th of September, 1827, he sold to Thomas T. Patton all the crop, stock and farming utensils at the Swannanoah farm, for $2,244.50, received payment for the same, and appropriated the amount received to his own use. When Mr. Patton made his will, he was ignorant of any such transfer having been made. Thomas was in possession of the farm and had been for several years.
It was referred to the clerk and master in Equity of (496) Buncombe County, to state an account of the effects, which had come into the hands of the executors, etc.
In the report filed, it appeared that the sum of ninety-one dollars and fifty cents was deducted from legacies given to three of the testator's grand-children, J. N. and J. P. Perkins, and Mrs. Cox; the reason given was, that that sum had been overpaid to their mother. This formed the ground of the first exception.
The clerk and master refused to charge the executors with the value of the crop, stock and farming utensils, in favor of Thomas T. Patton, upon the ground, that when the testator made his will, he did not own that property. This formed the ground of the second exception.
There was no other legacy in the will to Thomas T. Patton than that last above mentioned; and the clerk refused to allow any charge in favor of Mrs. Smith against Thomas T. Patton, as, according to the above report, he was to receive no legacy out of which it could be paid. To this she excepted.
The cause was heard upon a motion for further directions, upon the report of the clerk and master, and upon the exceptions above stated. This case comes on for further directions upon the report of the clerk and master of the Court of Equity, for the County of Buncombe, and the exceptions thereto. *409
The exceptions of the defendants J. P. Perkins, J. N. Perkins and Mrs. Cox, are sustained, for the reason that the amount overpaid to their mother, Mrs. Smith, cannot be deducted from what is due them.
The exception of the defendant Mrs. Anne E. Smith, depends upon that of the defendant Thomas T. Patton, which we will, therefore, consider first.
This exception depends upon the proper construction of the 13th item of the will of the plaintiffs' testator, referred to in the(497) report. This clause of the will, which, was made and published in 1835, is of a very uncommon and extraordinary character. It commences by reciting that the testator, believing that it would promote the interest of all his family, had, in 1827, committed to his son James W. Patton, the entire management of his estate; that he estimated the value of his personal property to be forty-five thousand dollars, and out of it he intended that his son James should pay such legacies as he might bequeath to his other children, leaving the residue for his said son. He then declared that his son had conducted the business to his entire satisfaction, and that he had paid to his brothers John and Benjamin, in discharge of their legacies, and in partial payment to his sisters, the aggregate sum of thirty-six thousand, seven hundred and forty-four dollars. The testator then proceeds thus: "In compliance with my original intention, and to enable him (James) to pay the several legacies herein mentioned, and to perform faithfully the many important trusts which will devolve upon him, I give to him all my personal estate, not herein before specifically bequeathed, with the exception of the house-hold and kitchen furniture, stock, crops and farming utensils, at my farm on Swannanoah, which I give to my son Thomas." By reference to the fourth item of the will, it will be seen that the testator gave his farm on Swannanoah, together with certain slaves, to his executors, in trust for the wife and children of his son Thomas. On the marriage of Thomas, which occurred some years before the will was made, the testator put him in possession of that farm, and he continued to reside on it with his family, taking and applying the profits of it for the use of himself and his family.
In the year 1832, it appears from the proof, that the plaintiff James W. Patton, sold to his brother Thomas, the crop, stock and farming utensils on the said farm, for the sum of $2,244.50, and received the price, and appropriated it to his own use. The question is, whether the defendant Thomas is entitled, under the circumstances, to claim that sum, with interest, from his brother James; and we think (498) that, upon the fair construction of the item in question, aided by lights reflected from some other parts of the will, he is so entitled. It *410 appears from several clauses of the will, that the testator designated as legacies what he had previously given to his respective children; and further, that he intended that his son James should advance in his life-time what he then bequeathed to them by his will. Such, no doubt, was his intention with regard to the legacy to his son Thomas. It is very certain that he did not intend his son James should have the benefit of it, for it is expressly excepted out of a general gift to him of all his personal estate. His son Thomas was in the possession of it, and it does not appear that he knew that his son James had sold it to him, and had received the price to his own use, and we are not to presume that such was the fact, against the inference to be drawn from the words of the will itself. The testator, though an old, was apparently a very intelligent man, and we can hardly believe that he would mock his son by bequeathing to him what he had already, by his agent, sold to him; and sold to him too, for the benefit of another son, who, he declared at the same time, should not have that legacy. That he intended this as a bounty to his son Thomas, is apparent from another consideration. This is the only direct gift to his son Thomas, yet he charges him with the payment of five hundred dollars to Mrs. Smith, one of his sisters. This would be another instance of an illusory gift, if Thomas is to take nothing under the will. No person can read the will, without being entirely satisfied that the testator never contemplated any such result. But it is contended for the plaintiff James W., that the legacy was specific, and was advanced in the testator's life-time; and for this is cited 1 Roper on Leg., ch. 3, p. 237. The general doctrine is admitted; but we do not think it applies to this case. Here, the will operated as a confirmation of what the testator supposed was a gift to his son Thomas. The words of the will itself contradict the supposition of a sale of the goods with the knowledge and consent of the (499) testator. Our opinion, therefore, is, that the defendant Thomas is entitled to claim from the plaintiff James W., the price of the crop, stock and farming utensils in question, and with interest thereon from the death of the testator, and his exception is, therefore, sustained.
The exception of the defendant Mrs. Smith, being dependant upon that of the defendant Thomas, is also sustained. The report of the clerk and master, after being reformed in the particulars excepted to, will be confirmed, and a decree may be drawn in accordance with this opinion.
Per curiam.
Decree accordingly. *411