21 N.C. 491 | N.C. | 1837
It is very clear that the bequests of the slaves in the manner stated, and the one-third of the fund produced by the sale of the balance of the property and directed to be kept for testatrix's negroes, are illegal and void. Sorrey v. Bright, ante, p. 113. The question then arises, does a trust result for the plaintiffs of two-thirds of the slaves and the fund contemplated by the will to be for their benefit, or does the whole of the slaves and the said fund go to the next of kin, as in a case of intestacy? Had the plaintiffs been expressly named general residuary legatees, their claim would be well founded. But it seems to us that the plaintiffs are only partially residuary legatees, and that of a particular fund. Out of "the balance" of her property her debts were to be paid, and then the "surplus," if any, "to be held by the executor, two-thirds of it (viz., the surplus, if any) for the (493) *384 clothing and support of the plaintiffs; "the other third to be kept for the benefit of my negroes." The intention of the testatrix is very clear that the plaintiffs were to be excluded in any event from taking, as residuary legatees, the one-third of the fund set apart for the negroes. And her intention is equally clear that her slaves were not to compose a part of the residue, since one-third of that very residue is given to the slaves themselves. Her intention was to confine the legacy of the plaintiffs to the two-thirds of a surplus arising out of a particular fund when her debts charged on that fund should be paid. This being the intention, as is plainly to be gathered from reading the will, the plaintiffs' claims cannot be allowed to the extent set up. The bequests relative to the slaves, or the fund mentioned in the will for the slaves, are illegal and void bequests. The slaves and said fund belong to the next of kin and must be divided among the plaintiffs and the defendants as they each may be respectively entitled under the statute of distributions.
PER CURIAM. Decree accordingly.
Cited: White v. Green,
