50 N.C. 91 | N.C. | 1857
The action was brought on the following penal bond: "Know all men by these presents, that we, James H. Vinson, Jesse Ferguson and William Harrison, are held and firmly bound unto Thomas B. Worrell, executor of Cherry Beale, in the just and full sum of eight hundred and thirty-five dollars and thirty-two cents," c. (Dated 17th of December, 1838.)
"The condition of the above obligation is such, that whereas Cherry Beale, by her last will and testament, which is of record in the County Court of Southampton, and of which Thomas Worrell, the executor therein named, took probate, after making several devises and bequests, she in the fourth clause of the will says: `I lend one-fourth part of the remainder of my estate to my daughter Lucy Ferguson, and her daughter Lydia Ferguson, and if either should die, I lend the said fourth part of the remainder of my estate to the survivor during her natural life, and give the same to their lawfully *92 begotten heirs. I desire that Capt. James Barnes, of Hertford county, North Carolina, receive the legacy hereby lent to my daughter Lucy Ferguson, and her daughter Lydia, and pay it to them as they need it, and if both the said Lucy Ferguson and Lydia Ferguson die without a lawfully begotten heir, then I give the said legacy, or so much of it as remains, to my daughter Polly Murfee's children, to them and their heirs for ever;' and whereas, according to the report made by the commissioner Cobb, to the County Court of Southampton, of Thomas Worrell's executorial proceedings on the estate of the said Cherry Beale, the fourth part, to which the said Lucy Ferguson and Lydia Ferguson are entitled, under the will, is $412,66, which has been paid over by the said Thomas Worrell, to the above bound James H. Vinson, who hath been, by an order of the County Court of Southampton, made at December term, 1838, substituted as trustee in the room of James Barnes, who refused to accept the trust, confided to him by the will, for the benefit of the said Lucy and Lydia Ferguson:
"Now, if the said James H. Vinson, shall faithfully and justly discharge the duties of trustee aforesaid, by paying unto the said Lucy Ferguson and Lydia Ferguson, (now Lydia Vinson, the wife of the said James H. Vinson,) and to the survivor, so long as they, or either of them, shall live, the said sum of money as they shall need it, according to the true intent and meaning of the said Cherry Beale, and at the death of both the said Lucy Ferguson and Lydia Vinson, (formerly Ferguson,) the said James H. Vinson shall pay over the said sum of money, or such part thereof as shall remain in his hands, unto such person or persons as shall be entitled to it, under the will of the said Cherry Beale, and shall indemnify and save harmless the said Thomas B. Worrell, his executors, c., from all loss and damage whatever, in consequence of any waste or misapplication of the said sum of money, or any part thereof, then the above obligation to be void, or else to remain in full force and virtue."
The defendant Vinson married Lydia Ferguson in 1837, *93 and there was born of the marriage, one daughter, who married one Edwards. In the year 1840, Lucy Ferguson died, and in the year following, (1841) Lydia Ferguson died, and after their deaths, but before the bringing of this suit, the plaintiff requested the defendant to pay over the legacy to him or to Edwards, which he refused to do. Edwards also made a demand before this suit was brought.
On the part of the defendant, it was insisted that the whole estate in the legacy vested in Lucy and Lydia Ferguson as tenants in common, and, on the death of Lucy, in the survivor absolutely, and that as Lydia survived, it passed to her husband, the defendant. Various alternative positions were taken by the counsel, which it is not essential to state.
The Court reserved the question as to the plaintiff's right to maintain the action, and left it to the jury to say whether the defendant had applied part of the fund to the necessary support of Lucy. The jury found the balance of principal, deducting payments to Lucy without interest. Afterwards, on consideration of the question reserved, his Honor gave judgment for the plaintiff, from which the defendant appealed. The plaintiff is not entitled to recover unless the bequest in the will of Cherry Beale to Lucy Ferguson and her daughter Lydia Ferguson, be construed to give them, or the survivor of them, a life-estate, only, in the money bequeathed, giving the remainder of the fund to the child of Lydia, under the limitation to her "lawfully begotten heir." In the events which have happened, it is not necessary, for the purposes of this case, to decide what interest vested in Lucy Ferguson and her daughter Lydia, as between themselves, and the only question which it is proper for us to consider is, whether the words, "their lawfully begotten heirs," mean children, or whether they are to be taken in their technical sense, and thereby give to the first takers the absolute *94 property in the fund. With regard to the will before us, we must say, as the Court said in Donnell v. Mateer, 5 Ire. Eq. Rep. 7, that "there is nothing in the context here, to control the technical meaning of the terms `lawfully begotten heirs,' and, therefore, we are obliged to receive them in that sense, as meaning that class of persons, who, by law, take property by inheritance, or succession, from another. Thus understood, they are not words of purchase, but of limitation, in dispositions of this kind, as well as in conveyances of land." See Ham v. Ham, 1 Dev. and Bat. Eq Rep. 598;Floyd v. Thompson, 4 Dev. and Bat. Rep. 478; Coon v. Rice, 7 Ire. Rep. 217. This construction must prevail, whether we consider the money as given directly to Lucy Ferguson and her daughter, or to Barnes, in trust for them; because, if it were a trust, it was an executed, instead of an executory one, according to the well established distinction between those two kinds of trust. Limitations of the former are construed like those of the legal estate, while to the latter is given a more liberal interpretation, in order to carry out the general plan of the testator;Saunders v. Edwards, 2 Jones' Eq. Rep. 134.
The will before us was made and published in Virginia, but the parties have admitted that it is to be construed according to the rules of the common law, and this admission makes it our duty, according to the case ofAllen v. Pass, 4 Dev. and Bat. Rep. 77, to put the same construction upon it, as we should upon a similar bequest made in this State; unless we are satisfied by judicial decisions made in Virginia, or by the opinions of professional gentlemen learned in the law of that State, a different construction would there prevail. In the present case we are not so satisfied; but, on the contrary, we are gratified to find that our opinion is fully sustained by that of the Hon John B. Minor, the distinguished Professor of the Law in the University of Virginia, which was, by consent, read as evidence in this cause. The opinion, to the contrary, of John R. Chambless, Esq., is, as we think, erroneous; and his error has, no doubt, been caused by his *95 not adverting to the distinction, above referred to, between executed and executory trusts.
The judgment must be reversed, and a venire de novo awarded.
PER CURIAM, Judgment reversed.
