36 N.C. 11 | N.C. | 1840
On 25 February, 1837, Mrs. Foster made her will, and therein bequeathed, amongst other things, as follows: "I have one bond on John, given 3 January, 1837, for three hundred dollars, I will and bequeath to my son John Lea's children." She appointed the defendant King her executor, and died in April following.
The bill stated that it was the intention of the testatrix to bequeath by that clause of her will the bond given by the plaintiff and Garrett as above mentioned; and that she gave to Garrett, who wrote the will for her, particular instructions to that effect, and that she did believe when she executed the will that it contained a proper and accurate description of that bond, and alleged that it was owing altogether to a mistake of the writer and of the testatrix that it did not, as the plaintiff was able to establish by proof.
The plaintiff was afterwards appointed the guardian of the children of John Lea, all of whom were infants; and he then applied to the executor to deliver to him as guardian the said bond, as that bequeathed to his wards. But the executor refused to do so, and instituted an action at law on the bond against Simpson and Garrett, and obtained judgment. (12) Whereupon the present bill was filed, praying that the bond might be declared to belong to the plaintiff's wards, and the defendant be enjoined from proceeding on the judgment, the plaintiff submitting to give his acquittance as guardian for the legacy.
The answer admitted that the bond was not needed to pay debts, but insisted that the bequest was void for uncertainty, inasmuch as the will did not sufficiently state by whom the bond was given, and likewise that this bond would not pass because it was dated on the 13th and not on 3 January, 1837; wherefore the bond was a part of the undisposed surplus of the estate, and it became the defendant's duty to collect the money for distribution. The answer denied all knowledge of the intentions of the testatrix, except as appearing in the will, and of any mistake in drawing the will; and insisted that it was not competent to explain the will by parol testimony.
The deposition of Garrett, who wrote and witnessed the will, established all the facts stated in the bill as to the intention of the testatrix and her instructions, and his own mistake in omitting the name of Simpson as the obligor, and in changing the *4 date of the bond from the 13th to 3 January. To the reading of this deposition the counsel for the defendant objected.
The plaintiff exhibited the inventory returned by the defendant, on which it appeared that the testatrix owned about twenty slaves which were disposed of, and perishable property which the defendant sold to the value of $368.83, and cash $5. The inventory then proceeded: "One bond executed to Lettuce Foster by John Simpson and Thomas Garrett, due 13 January, 1837, for $300"; and it stated no other bond or debt owing to the testatrix. As we find in the answer, will and inventory sufficient and full grounds for holding that the bond in dispute (13) was not only intended to be given, but is given in the will, it is unnecessary to say anything on the objection to Garrett's testimony. We lay the evidence out of the case, therefore, and proceed upon the others.
This is not the case of a description so imperfect and vague as to be senseless and incapable of execution. Although the name of "Simpson" be omitted as the obligor, yet the bond is sufficiently identified without that by other parts of the description. Nor will the bequest be defeated by the difference in the dates of the bond as mentioned in the will, and as actually existing, provided that notwithstanding that contradiction the bond is embraced by other parts of the description, and is from them so completely identified that it is impossible to be mistaken as to the bond that was meant. Thus, we think, it is here. The case is but an example, under the common rule, that when a deed or will once sufficiently identifies the thing by its known name or by other means, and then superadds unnecessarily to the description, such further description, though inaccurate, will not vitiate the previous and perfect description.Proctor v. Pool,
The Court has thought it best to make this declaration, inasmuch as the construction of the will involves the merits of the controversy, and no objection was made in the argument to the form of the bill; so that, we suppose it probable that parties would adjust the business, after obtaining the opinion of the Court on that point. We cannot, however, proceed further in the case in the present state of the pleadings. The bill is brought by the guardian, in his own name, for a legacy to his wards. The suit ought to be in the name of the wards. It is true that here the legacy consists of a debt owing by the guardian, and that one object of the bill is to obtain an injunction against a judgment for the debt. That might have authorized the present plaintiff to become one of the parties, but it does not dispense with the necessity of making the legatees themselves plaintiff. The equity does not belong to the debtor who happens to be guardian, but to the wards; and the injunction is only a mode of relief arising out of that equity. The case must therefore stand over for further directions, in order, should the parties not settle *6 it between themselves, that the plaintiff may take the proper steps to make the other parties.
PER CURIAM. Direct accordingly.
Cited: Banner v. Simms,
(15)