40 N.C. 82 | N.C. | 1847
By a will made in September, 1842, Robert Tucker devised as follows: To his wife, Elizabeth, he gave 100 acres of land. To his daughter Susannah Martin, $50, to accrue from the sale of his land; and to his daughter Sarah, 50 acres of land. To the children of his daughter Elizabeth Norton, he gave two parcels of land, to be equally divided between them.
Besides those devises, the will contained dispositions of personalty, as follows: To the widow, two slaves. To the testator's children John and daughter Elizabeth, five shillings each. To Sarah, a daughter of the son John, a negro girl; and to his sons Anderson, Paul, Silas, George, Robert, and Daniel, and to his daughter Sarah, and his granddaughter Sarah Priddy, certain slaves, each.
Then follows this clause: "The balance of my land and other property I appoint and ordain to be sold, and the money arising from the sale thereof, not given away, to be applied to paying my debts; (83) and the balance, if any, to be equally divided among the herein named legatees."
The will was upon a caveat pronounced to be good as to the real estate, but not as to the personalty. Tucker v. Tucker,
The testator's daughter Elizabeth had six children. The bill is filed by the testator's widow and children, and the granddaughter Sarah Priddy against the administrator, the granddaughter, Sarah Martin, the granddaughter Sarah Tucker (daughter of John Tucker) and the six children of the daughter Elizabeth Norton; and the prayer is for an account and distribution of the personal estate, and of the proceeds of the residue of the real estate. *57
No difficulty is made as to the personal estate proper. The will was not effectual to pass it, and therefore it must go as if there had been nothing said in the will about it. Consequently, after the payment of debts and the charges of administration, the surplus is to be distributed according to the statute, among the widow and children of the testator, or their representatives. Rev. St., ch. 64., sec. 1, and ch. 121, sec. 12. Johnsonv. Johnson,
A question is, however, made as to the proceeds of the real estate, upon the terms, "the herein named legatees," as descriptive of the donees in the last clause. For the plaintiff it is contended that no one takes under that description, inasmuch as the instrument is inoperative as to the personalty, and, therefore, no "legacy" is given in it. And, if that be held otherwise, it is moreover insisted that the testator meant, by "legatees," his children who were his heirs and next of kin, and not the widow, the children and grandchildren, indiscriminately, (84) to whom the paper purports to make donations. But the Court cannot agree to that construction. It is true that the more appropriate definition of "legatee" is, a person to whom personalty is bequeathed. But that is not the only sense in which it is used. It may also embrace a donee of realty by devise. Holmes v. Mitchell,
Then, as to the other sense in which it is said this term "legatees" is to be taken, it is necessary to say very little. It is perhaps true *58 that sometimes, among the very illiterate, heirs or next of kin, or both, are vulgarly called "legatees." But there has been no such judicial acceptance of that term, nor can there be, unless it be perfectly plain upon other parts of the instrument that the testator meant it in that (85) sense. We find nothing to control it in this will; and therefore we must understand by it, here, the persons to whom the testator had, in the previous parts of the instrument, made or professed to make donations of some sort. It is true, it seems singular that after cutting off two of his children with five shillings, and at the same time bestowing bounties on their children, the testator should divide the residue equally among all his children and those same grandchildren. Yet it must be so, if the testator has said so; for the Court cannot undertake to recognize all incongruities in such wills, nor refuse to carry out the directions of the testator as far as they are intelligible and consistent with law, because we may not be able to account reasonably for them. Indeed, it is often the case that unlettered men sit down to make their wills without any settled plan in their own minds, and that they are drawn up by persons not capable of expressing correctly the directions given to them. Nevertheless, the Court cannot receive their words in any other than their legal sense, unless it be quite clear in what other sense they were intended. Consequently, it must be declared that the proceeds of the land are to be equally divided per capita between the widow and the testator's children, and those of his grandchildren to whom any gift had been made or purported to have been made in the previous parts of the will.
PER CURIAM. Decreed accordingly.
Cited: McCorkle v. Sherrill,
(86)
