| N.C. | Jun 5, 1848
Henry Bright was seized in fee of the premises in the declaration described, and on 15 April, 1836, he made his will, and therein devised and bequeathed as follows:
He directed a tract of land and three slaves to be sold and the proceeds to be applied to the payment of his debts, and the surplus, if any, he gave to his wife, Polly. The will then proceeds thus: "I lend the tract of land I now live on," being that in dispute, "unto my wife during the time she remains my *274 widow. I also lend negro woman Chary and child, Pleasant, Major, Sylvester, Ann, and Amanda, to my wife, Polly, as long as she lives my widow. I lend the use and benefit of all (375) my stock of every denomination, all the produce of every kind, all the household and kitchen furniture, and farming utensils of every description to my said wife as long as she remains my widow. Immediately after the marriage of my widow, or directly after the death of my wife, Polly, I give and bequeath all the before-mentioned estates, within doors and without, to my loving wife Polly's heirs by consanguinity, with the exception of Elizabeth McPherson, and I give and bequeath to her $1. I appoint my wife, Polly, whole and sole executrix of this my will."
The testator died on 15 May, 1836, and his will was proved on the fourth Monday of that month, and his wife then entered her dissent to it. The testator or his wife had no issue born at the making of the will, but she was at the time pregnant. In August, 1836, the widow intermarried with the defendant, Flora, and she was afterwards delivered of the child of which she was pregnant in the testator's lifetime; and the child lived about six months and died. At that time the defendant was in possession of the land, and dower was allotted to his wife in one-third of it, which he claimed in her right. The defendant afterwards made a parol contract for the purchase of the reversion of the third allotted for the dower, and of the other two-thirds in possession in fee, from Narcissa Halstead, and Rachel, Solomon and Robert Charlton. They were, together with said Elizabeth McPherson, the brothers and sisters of the testator's wife, and were living at the making of the will, the death of the testator, and the marriage of his widow. Under those titles and a deed from Solomon Charlton for his share of the premises, executed about two years before the suit, the defendant held the premises for about ten years before the commencement of the action, claiming in right of his wife, or under her brothers and sisters for himself. Mrs. Flora died shortly before (376) this suit; and the lessors of the plaintiff are the heirs at law of the testator and of the posthumous child ex partepaterna.
On the trial the foregoing facts were agreed by the parties. Then the counsel for the defendant offered furthermore to prove by witnesses that the testator, at the time of making his will, was ignorant of the pregnancy of his wife, and that it was his intention, by his will, to give the premises to the said brothers and sisters of his wife (except Elizabeth McPherson) after the death or marriage of his said wife. But the court rejected the *275 evidence, and upon the facts stated was of opinion with the plaintiff, and a verdict and judgment were rendered accordingly, and the defendant appealed. A title at law cannot be set up for the after-born child, under the act of 1808, in favor of children born after the making of their parent's will. For if the child took by the will, it was provided for by the father, and the case would not be within the act; and if the child did not take under the devise, but the mother and her brothers and sisters took the whole property, then the proceedings were not had which the act prescribes for vesting the seizin in the child.
Upon the construction of the will it is contended for the defendant, either that the testator's widow took the fee or that it was limited over in remainder, upon the death or marriage of the wife, to her brothers and sisters, except Mrs. McPherson. That depends upon the operations of the words, "my wife's heirs by consanguinity." We do not think they gave the inheritance to the wife. It is plain, from the testator's giving everything he had to his wife and her blood, that he did not intend his estate to go to his own family, as such. Then, as he gives the property over, upon the marriage of his wife, as well as upon her death, to her heirs by consanguinity, there (377) would seem to be a pretty strong inference that the testator did not mean those persons to take in the quality of his wife's heirs, that is, by succession after his death; because then, upon the marriage of the wife, the whole property would go to the testator's own heirs and next of kin, for the interval between the wife's marriage and death. Perhaps that of itself would not be sufficient to prevent the application of the rule in Shelley's case to this devise. But when to those considerations is added this other, that the testator expressly excepts from the wife's heirs to whom the limitation is made, a certain sister of the wife, one cannot be mistaken in saying that the words were not used as words of limitation of an estate to the wife, but as words of purchase, denoting who were to take in remainder after the wife; for by the exception it is manifest that the sister was understood by the testator to be within the general terms of description, and that she might take but for the exception. If she did take, it would be as one of the wife's heirs, and others in equal degree must, in like manner, come in under the same words. But by excluding that sister, and leaving the others in *276 equal degree to take, the testator shows that he did not mean them to take as heirs by descent from his wife, since the course of descent cannot thus be altered by admitting some and excluding other heirs. The wife's estate, therefore, was only that expressly limited to her during life or widowhood, and the heirs took by purchase in remainder.
Then the question is, Who did take as purchasers under those words? There are no other persons who can set up a claim but the after-born child, and the other brothers and sisters of the wife, besides Mrs. McPherson. Here it may be remarked that the construction must be upon the will itself and cannot be controlled by parol proof of an intention as to the particular persons to take under the devise, for in effect that would be to make the will by parol. The question is not the abstract one, (378) what the testator intended, but what was his meaning by the words used by him. The evidence as to the intention was therefore properly excluded. On the other hand, it has been decided that the construction may be aided by evidence of the state of the family. Gibbons v. Dunn,
Between the two sets of claimants, the wife's after-born child and her brothers and sisters, the opinion of the Court is for the former. The testator uses words, "my wife's heirs by consanguinity," which embrace the child as well, in case it was out of the way, as they do the brothers and sisters. The child being in ventre matris, was in rerum natura capable of taking by descent, and also by purchase under the description of "child" or "heir" of another. Doe v. Clark, 2 H. Bl., 399; Wallis v. Hodgson, 2 Atk., 117; Thelluson v. Woodford, 4 Ves., 227. Then, what is to exclude the child? It is to be remembered that whoever takes does so as purchaser; and that, as by the marriage of the wife the remainder would fall into possession during her life, the person who takes does not take as being the heir absolutely of the wife, but only as her heir apparent. It is asked The brothers and sisters claim as filling the latter character, while the child was undoubtedly heir apparent. It is asked again, What is to exclude it? If the testator knew that it was in ventre matris, the defendant gives up the argument. But it is insisted that he did not know it; and the presumption is very *277 cogent on the face of the will that he did not, and it is thence inferred that the testator could not mean the child to take, and that he did mean the brothers and sisters to do so, as heirs presumptive. There can be but little doubt, we (379) think, that the testator expected the brothers and sisters to take, as he then naturally looked upon them as the wife's nearest relations, and the exclusion of one of them shows that they were in his view. But that is not the whole inquiry. We are to consider not only whether he intended those persons might or should take, but whether they, and no one else, should. How can those broad words, "my wife's heirs," be narrowed down to three or four particular persons, though those persons may have been in the testator's contemplation? The argument for the defendant is founded on the state of the testator's knowledge at the time he used this language; and thence is deduced his expectation, and thence, again, his intention, on this subject. The position is that he meant the brothers and sisters, because he knew them. It would follow that he could only mean those brothers and sisters whom he did know. But suppose the words had been "my wife's brothers and sisters," and there had been one of whom the testator had no knowledge, it would be impossible to exclude one that came so expressly within the description. Again, as these brothers and sisters say that they take under the description of the "wife's heirs," for the same reason another brother or sister, though unknown to the testator, must also take under the same description. Suppose, further, that after the making of the will all the brothers and sisters had died in the lifetime of the testator; leaving children. The devise would certainly not fail, but those children would come in as answering the description, when the will took effect and vested the estate. The gift is not to particular persons, as the sole objects of the testator's county, but to a class of persons; and whoever came within it when the will took effect and the estate vested take under it, and none others. So the child of the wife took under this description, because, though unknown to the testator, it alone answered the description, for it was in being when the will was made, and when (380) the testator died and the wife married, and was heir apparent; and thereby the brothers and sisters ceased to be heirs presumptive. The exclusion of one of the sisters, though sufficient to show that if the brothers and other sisters took at all, they were to take as purchasers, does not prove that they were to take at all events, to the exclusion of all others. Whenever they should take, as being the heirs presumptive of the wife, *278 Mrs. McPherson, though in equal degree, should not take. But it would still be a question between those brothers and sisters and a child of the wife, then in ventre matris, which most nearly answered the description of "heir of the wife," and certainly the latter did, as being her heir apparent.
The lessors of the plaintiff are therefore entitled to the premises as heirs of the after-born child, who took the fee. The defendant's possession was without color of title, and therefore is not a bar to the right of entry. He took a deed from only one of his vendors, and that only two years before the suit. If, indeed, they had color of title, then the defendant's possession under them would have been sufficient. But, as was intimated inMontgomery v. Wynns,
PER CURIAM. Judgment affirmed.
Cited: Flora v. Wilson,
(381)