6 N.C. 140 | N.C. | 1812
"I give and bequeath all my movable estate, excepting negroes, of every kind, first to my loving wife, Arcadia Witherington, till such time as my youngest daughter comes to be of the age of twenty-one years, and then to be divided equally among my loving wife and daughters, Arcadia Witherington, Anne Witherington, Jane Witherington, Mary Witherington, *110 and Lucy Witherington, to them, their heirs and assigns, forever." "And my will is that my executors hire out all my said negroes yearly, till such time as my youngest daughter comes of the age of twenty-one years, and the money arising from said hire I give to my wife, Arcadia Witherington, to her and her heirs and assigns, forever. And my will is that at such time as my youngest daughter comes of the age of twenty-one (141) years all my said negroes, and their increase, be equally divided among my wife, Arcadia Witherington, Anne Witherington, Mary Witherington, Jane Witherington and Lucy Witherington, to them, their heirs and assigns, forever."
Jacob Perry, the complainant, married Jane Witherington, one of the daughters, and she died before Lucy, the youngest daughter, arrived to the age of twenty-one years. Perry took out letters of administration on the estate of his deceased wife, and brought this suit, claiming a distributive share of the negroes; and it was submitted to the court, whether he was entitled to such share. The substance of the bequests contained in this will is that all the testator's personal property should be divided amongst his wife and daughters, when the youngest of the latter attained the age of twenty-one years. But in the meantime he gives all his movable property to his wife, except his negroes, which he directs his executors to hire out yearly, and to pay the money arising from their hire to his wife. To give the hire of the negroes to his wife till that period is to give her all the beneficial interest in them, and will warrant the same construction upon the whole will as if the exception had not been introduced. In principle, then, the case cannot be distinguished from Conlet v. Palmer, 2 Eq. Ca. Ab., pla. 27, where J. S. bequeathed his personal estate to his wife for life, and gave several particular legacies after her death, and then declared that the residue, at her decease and after the legacies paid, should be divided among his relations, A, B, C, and E. A and B died in the lifetime of the wife, and after her decease the administrators of A and B had a decree for their shares; for, by the Chancellor, "The time of payment is future, but the right to the legacies vested upon the death of the testator." The general rule resorted to in cases of legacies charged upon personalty is, that if the legatee die before the day of (142) payment, his representatives become entitled to the legacy, unless the will shows a manifest intention to the contrary; and the court proceed upon an established distinction between a gift of a legacy to a man at, or if, or when, he attains *111 the age of twenty-one, and a legacy payable to a man at, or when, he attains the age of twenty-one. In the first case the attaining twenty-one is held to be as much applicable to the substance as to the payment of the legacy, and therefore the legacy lapses by the death of the legatee before the time. In the last case the attaining twenty-one refers not to the substance, but to the payment only, of the legacy, which therefore does not lapse by the death of the legatee before the time. In this case, the division of the property amongst the wife and children is not annexed to the substance of the legacy, but to the period of the youngest daughter attaining the age of twenty-one years. This prescribes the time of enjoyment, but the right vested immediately upon the testator's death. The intermediate interest is given to the wife, doubtless with a view to the benefit of the children as well as herself; and it has been held that where the intermediate interest is given, either to a stranger or to the legatee himself, such a case forms an exception to the distinction which has been stated, because it explains the reason why the time of payment or division, as in this case, was postponed, and is perfectly consistent with an intention in the testator that the legacy should immediately vest. The consequences of a different construction would be that if any of the daughters died leaving children, before the youngest daughter came of age, those children would be wholly unprovided for; which certainly was not the intention of the testator.
Cited: Giles v. Franks,
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