Opinion
(August Term, 1849.)
A testator after making other devises and bequests, directed as follows: "It is my will that my land and negroes and all the residue of my property, both real and personal, not heretofore expressly willed, be put to sale at such credit as my executors may think proper; out of the proceeds of which sale it is my will that all my just debts be paid, and the balance or residue of said money arising from such sale, after paying my just debts as aforesaid, I allow, and it is my will, shall be equally divided among A., B., C.," etc. Held, that bonds and notes due to the testator were not included in this clause, as not being the ordinary subjects of sale, and there being no general residuary clause, the amount of them went to the next of kin, as undisposed of.
CAUSE removed from the Court of Equity of MECKLENBURG, at November, Term, 1847.
Osborne and J.H. Wilson for plaintiffs.
Boyden, Alexander and Bynum for defendants.
In 1841 William Alexander, of Mecklenburg County, made his will, duly executed to pass real and personal property. The 5th clause is as follows: "It is my will that my land and negroes and all the residue of my property, both real and personal, not heretofore expressly willed, be put to sale, at such credit as my executors may think proper. out of the proceeds of which sale it is my will that all my just debts be paid, and the balance or residue of said money arising from such sale, after paying my just debts as aforesaid, I allow, and it is my will, shall be equally divided between my there daughters, towit, Sarah, Isabelle, and Abigail, and as my sons, Joseph, John, William, Robert, and James, have heretofore been provided for, as well as my daughters Jane, (230) Elizabeth, Rebecca, and Margaret, I have left them nothing in this my last will and testament." At the time of the testator's death, besides lands and negroes, stock and other personal property, he had a number of promissory notes on various persons, amounting in the whole to $2,800. The bill is filed by the executor to procure the opinion of the Court as to the proper construction of the above devise. The defendants are the children, or such as represent them, and next of kin of the testator. The defendants Sarah Alexander, Calvin S. Wise, administrator of his wife, Isabelle Alexander, and James Alexander, administrator of his wife, Abigail Alexander, by their answer claim the proceeds of the notes as being included in the 6th item of the will, and passing under it, and the other defendants in the answer claim that, as to the notes, the testator died intestate, and the proceeds of them must be divided among the next of kin of William B. Alexander as in a case of intestacy.
The question submitted to us depends upon the proper construction of clause 6. The intention of the testator is always to be carried out when it can be gathered from the will itself, but it must not rest in supposition of surmises. The testator must not only have a particular intent, but must express that intent in apt words, in words sufficient to show it, The terms "all the residue of my property, both real and personal, not herein expressly willed," etc., would very clearly embrace not only the notes in question, but also such money as he had in possession at the time of his death, and if the testator had devised the property itself to the three legates mentioned in that clause, no question could be made as to their right under the will to it. But he has not so done, but gives to them the proceeds of the property. He directs that (231) the property embraced in that clause should be "put to sale at such credit as my executors may think proper." What property is embraced in this clause? Certainly not notes or money, but such property as was usually the subject of sale.
This construction is made evident by the direction to sell on a credit. It the notes were so sold, they would produce but notes or bonds, or evidences of debt. In Fraser v. Alexander 17 N.C. 348, the will commenced, "As to what worldly substance it has pleased God to bless me with, I dispose of in the following manner," etc. There it was manifestly the intention of the testator not to die intestate as to any of his property, yet the Court decided that he had not disposed of the whole. In the opinion delivered by the Chief Justice it is declared that the term "all my property" could not embrace money or bonds, if the testator had left any, because the property thereby given is to be sold at public sale, which is altogether inapplicable to money, whether due or in hand. That case was followed by that of Bradley v. Jones, 37 N.C. 248, where the question we are now considering came directly before the Court. The words of the will there were "all the balance of my estate that is not given to be sold, and the money arising from the sale," etc. At the time of the death of the testatrix she had in her possession specie and bank notes. The Court decided that she could not have meant the latter, but only such property as was usually the subject of sale. It is said, however, in behalf of the three legatees mentioned in that clause, that it is evident that the testator did not intend to die intestate as to any of his property; that he intended to dispose of the whole. This may be so, and very likely was, but, in seeking for his intention, we must not pass by the language he has used. If we do, we shall make the will, and no expound it. The intention of the testator in this case, for that purpose, is not expressed as clearly and as strongly as in Bradley v. Jones. (232) There, then, could be no doubt of such intention, and yet the Court decided he died intestate as to a large and valuable portion of his estate mentioned in the will.
We are of opinion that the notes on hand at the death of the testator did not pass under the 6th clause of the will, they not being mentioned in it specifically, and there being no general residuary clause which would embrace them; therefore they must be distributed as in a case of intestacy.
PER CURIAM. Decree accordingly.
Cited: Allsbrook v. Reid, 89 N.C. 154; Harkness v. Harkey, 91 N.C. 199; Holton v. Jones, 133 N.C. 406; McCallum v. McCallum, 167 N.C. 311.
Dist.: Hogan v. Hogan, 63 N.C. 225.