Smith v. . Smith

| N.C. | Jun 5, 1860

The bill is filed by the legatees of Casper Smith, Sr., against his executors for an account and settlement of their legacies. Five of the plaintiffs are the children of Casper C. Smith, and are represented by their guardian, A. F. Smith. The said Casper C. Smith was the son of the testator, and was alive at the time the will was made, but removed from the State, and died in Texas without leaving any property here. At the time of the deaths of both Casper Smith, Sr., and Casper C. Smith, the plaintiff A. F. Smith held a bond on the two for $ _____, in which Casper C. was the principal. The only question of interest presented by the case is, whether the Court will decree that defendants, as executors of Casper Smith, Sr., shall pay and settle the said debt with A. F. Smith out of the legacy intended for Casper C. Smith, so (306) as to be discharged pro tanto from the claims of his children, or whether they are to account for the whole of said legacy to the plaintiffs, his children. The answers of the defendants do not vary this statement of facts, which is taken from the bill, but they submit to be governed by the decree of the Court in the premises. The only question which the pleadings present for our decision involves the construction of sec. 28, chap. 119, of the Revised Code, which is in the following words: "When any person, being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any such issue of such person shall be living at the death of the testator, such devise or bequest shall not lapse, but shall take effect and vest a title to such estate in the issue surviving, if there be any, in the same manner, proportion, and estate as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will."

In the case now before us, Casper Smith, the testator, devised and bequeathed to his son Casper C. Smith both real and personal estate. The son was alive at the time when the will was made, but died before his father, leaving several children, who are the present plaintiffs. At the time of the son's death, his father was his surety for a debt, which the defendants, as his father's executors, have been called upon to pay. The creditor is the guardian of the deceased son's children, and is willing to permit the executors to pay the debt out of the property devised and bequeathed to the deceased son if, upon the true construction of the act, to which reference has been made, his children take the property subject to the payment of their father's debts.

The act contained in the Revised Code is taken, with some (307) slight changes of phraseology, from sec. 15, chap. 122, Rev. Stat., which was a literal reenactment of the act of 1816 (chap. 915, Rev. Code of 1820) with the preamble omitted.

The question which we are now called upon to consider has not, so far as we are aware, been the subject of judicial consideration, and we are, therefore, left to determine it without the aid of precedents upon those rules of construction which the judges and sages of the law have laid down as guides for the exposition of statutes. One of these rules is, that an inquiry should be made as to what was the old law, what the mischief which existed under it, and what the remedy applied by the Legislature, the words of which must be so construed as to suppress the mischief and advance the remedy. 1 Blackstone Com., 87. The Legislature has itself furnished us the necessary lights in making this inquiry, by the preamble which was annexed to the original act of 1816. That preamble reads as follows: "Whereas it is the rule of common law, as in force and use in this State, that where any person makes a last will and testament in writing, and devises any portion of his or her estate to his or her child or children and the heirs, executors, administrators and assigns of such child or children, and such child or children dies before such testator or devisor, leaving issue, that then, and in that case, the legacy, share, or proportion of such testator's estate so devised lapses or falls into the residuum, where one is devised, and in other cases descends and is distributable among his next of kin generally, as in cases of intestacy, to the prejudice of the beneficent views of such testator and to the just expectations of the issue of such child or children; for prevention whereof, Be it enacted, etc." It is apparent from this that prior to 1816, the law was such that if a devise or bequest were made by a testator to his child, and such child died in his lifetime, leaving issue, the devise or legacy would lapse and fall into the residuum if there were any residuary clause in the will; or if there were none, would be intestate property and descend to the heirs at law or be distributed among the (308) next of kin of the testator, according to the nature of the property. The mischiefs which the Legislature had in view, and which they intended to prevent, was that the benevolent intentions of the testator towards the issue of his deceased child were frustrated and the just expectations of such issue were disappointed. Not a word is said, nor is the slightest intimation given, that any part of the mischief existing under the old law was that the creditors of the deceased child would fail to have an opportunity to secure their debts out of the lapsed devise or legacy. The issue alone, and not the creditors of the deceased child, were in the contemplation of the Legislature, and, accordingly, the remedy will be found to apply only to them. By the original act of 1816, and by it as revised in 1836 (1 Rev. Stat., chap. 122, sec. 15), the issue are to take the devise or legacy "in the same manner and to the same extent" as it would have vested in the deceased child had he or she been in full life at the death of the testator. In the Revised Code, the provision in favor of the issue of a deceased child makes them take the devise or legacy "in the same manner, proportions, and estates as if the death of such person had happened immediately after the death of the testator unless a contrary intention shall appear by the will." The form of expression in the latter enactment varies somewhat from that of the former, but the idea is the same — that the issue, whether one or more, is or are to take the devise or legacy and to take the same estate in it which his, her, or their father or mother would have taken had he or she survived the testator, whether as a tenant in severalty or a tenant in common with others. Had the Legislature intended the issue to take the property subject to the debts of the deceased child a very different phraseology would have been necessary to express clearly and fully that intention, particularly with regard to personal estate. In that case the language would have been, in substance, that the legacy should vest first in the executor or administrator of the deceased child, to be by him distributed, after the payment of debts, among the children of his testator or intestate. We cannot believe that any such idea was in the mind of the legislators, and we therefore declare our opinion to (309) be, in the case before us, that the children of the deceased devisee and legatee Casper C. Smith take the real and personal estate devised and bequeathed to him by the defendant's testator without any liability for the debt mentioned in the pleadings. A decree may be drawn in accordance with this opinion.

PER CURIAM. Decree accordingly.