| N.C. | Jun 5, 1860
Matthew Brickhouse made his will in 1852 and died in 1857. The plaintiff Samuel Rogers and the defendant James Brickhouse were appointed executors in the said will, and they both were qualified as such. The bill is filed by Rogers and his wife against James Brickhouse and the several legatees under the will, praying that the said James may account for the amount of the estate that came into his hands, and the several legacies may be paid over under a decree of this Court, and the said Samuel, for his protection and indemnity as executor and that for his coexecutor, asks the advice and direction of the Court upon several questions growing out of the construction of the will.
By the third clause of the said will, the testator devises as follows: "To my daughter, Joanna Brickhouse (who is the wife of defendant James Brickhouse), and her heirs forever, all my lands, except the Peter place, the Godwin tract, and the great swamp tract, which several pieces I devise to be sold by my executors, and the moneys arising from said sale to be equally divided among my heirs at law."
At the making of the will the testator owned a piece of land (302) containing 8 1/2 acres, which had formerly belonged to one Emily Godwin, and hence was called the "Godwin land." Afterwards, in 1855, the testator bought of one Saunderson a tract of about 200 acres; and afterwards (in 1857) he bought of one Benjamin B. Brickhouse a tract of about 60 acres, one-half of which had once belonged to Emily Godwin. These two last mentioned tracts adjoined each other and were only separated from the 8 1/2 acre tract by a public road, and the three tracts were occupied and cultivated as one tract with the same gang of hands under the same superintendence.
James Brickhouse and his wife claimed that all the said land except the 8 1/2 acres passed to her, whereas the several parties defendant coming in under the description of heirs at law claim that the whole of these *242 three tracts fall under the denomination of the "Godwin land," and must be sold for the benefit of the fund in which they are interested. The plaintiff prays the advice of the Court on this point.
A further question arises under this clause, which is, Whether the money arising from the sale of this excepted land is to be distributed perstirpes, or per capita?
Also, in the ninth clause, the testator devises and bequeaths theresidue of his estate to be sold and the proceeds equally divided among hisheirs at law, and the same question as to the mode of distribution is made as to both the real and personal property contained in this clause.
By the fifth clause of the will, the testator bequeaths as follows: "I give and bequeath to my granddaughter Ann Cahoon a negro girl named Hasty, and her increase." At the time of the making of the will Hasty had one child about 18 months old, which was not named in the will, and has had no other before or since. The bill states that Ann Cahoon claims this child Hasty under the above bequest, and that the others insist that it must be sold under the said ninth clause of the will, and he asks that this conflict may be resolved by the Court so as not to prejudice the executors.
By the eighth clause the testator devises as follows: "I give and bequeath to my daughter Joanna Brickhouse 100 barrels of corn, (303) 6,000 pounds of fodder, and all my crop of potatoes." The defendant James, for his wife, claimed the crop of potatoes which was growing on the land at the testator's death, to which the others objected, and the plaintiff asks to be informed as to this point.
The other exception involves only matters of fact and is sufficiently apparent from the opinion of the Court. The bill is filed for the purpose of obtaining a construction of the will of the testator, Matthew Brickhouse. Several questions are raised, which we will proceed to consider and dispose of in the order in which they are presented.
1. The first question arises on the third clause of the will, and the facts in relation to it are as follows: When the will was executed in September, 1852, the testator owned 8 1/2 acres of land, which were called and known as the Godwin tract, from the fact that they had once formed a part of a tract of land belonging to a person of that name. He afterwards purchased, at different times, lands lying adjacent to the 8 1/2 acres, a portion of which had belonged to Godwin, and another of about 30 acres had been owned by a different person. All these lands *243
were cultivated by the testator, after his purchase of them, as one farm. The question is, Are they excluded from the devise to the testator's daughter Joanna by being included in the exception of the "Godwin tract"? We are clearly of opinion that they are. The will was executed after the passage of the act of 1844 (see Rev. Code, chap. 119, sec. 6), and must be construed as to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, which was in October, 1857. Thus speaking and taking effect, it is settled that the Godwin tract will embrace what is known and cultivated as such, though composed of different parcels of land bought at different times. See Bradshaw (304)v. Ellis,
2. Another question is raised upon this third clause, as well as upon the ninth clause, as to how the division is to be made, whether per stirpes or per capita. We think the former mode is clearly indicated. As there is nothing in the will to show that the terms "heirs at law" are not used in that technical sense, we are bound to take them in that sense, and direct the distribution of the proceeds of the lands as the lands themselves would have descended by law to the heirs per stirpes. The personal property, if any be embraced in the ninth clause, must be governed by the same rule, it being given in the same terms which were applied to the proceeds of the real estate, and we being unable to discover any purpose in the will to make a different distribution of it.
3. The late case of Williamson v. Williamson,
4. For the reason that the will, by force of the act of 1844, to which reference has heretofore been made, speaks and takes effect as at the time of the death of the testator, we think his daughter Joanna was entitled to the crop of potatoes then growing.
5. The testator's son-in-law James Brickhouse alleges in his answer, that by an agreement with the testator, he was to have one-half of the crop for his services, and in consequence thereof he sets up a claim to that effect as to all the crops of various kinds growing on the testator's land the year in which he died. There is no proof of such agreement, and we must declare that it did not exist. The consequence is that, as one of the executors, he must account for all the crops (305) *244 which were on the testator's land at the time of his death, except those portions of them which were expressly bequeathed to his wife, to wit, 100 barrels of corn, 6,000 pounds of fodder, and all the crop of potatoes. He will be entitled to keep all the produce of his own land for that year. A decree may be drawn upon the principles declared in this opinion.
PER CURIAM. Decree accordingly.
Cited: Grandy v. Sawyer,