Opinion
July Term, 1810.
1. A devised all his cash on hand, certificates, stock in trade, etc., also all his estate real, personal or mixed, not before devised, "to his three illegitimate daughters, B, C, and D, between them and the heirs of their bodies forever; but if either of the said children should die before they arrive at the age of eighteen years, or marries, then the estate of the one deceased to be equally divided between the surviving two, to them and the heirs of their bodies forever; and if two of the said children should die before they arrive at the age of eighteen years or marries, then the portion of the two deceased shall descend to the surviving one and the heirs of her body forever; but if all the said daughters should die before they arrive at the age of eighteen years, or marry, and have issue thereby, then all the cash, certificates, etc., and other property aforesaid to be equally divided between E, F, G, etc."
2. D, one of the daughters, intermarried with J. S., and died after attaining the age of eighteen years, but without issue.
3. D's estate became absolute upon her arriving at the age of eighteen years, and upon her death, without issue, did not vest in her surviving sisters.
4. Cross-remainders between the daughters are not to be raised by implication in this case. And the court will construe the word or as and to effectuate the intention of the testator; his intention being, that if either of the daughters should die under the age of eighteen years, unmarried, and without issue, that her estate should go over to her surviving sisters; but if either of them should attain the age of eighteen years, or should marry and have issue, that her estate, before contingent, should become absolute upon the happening of any one of these events.
MICAJAH THOMAS, late of Nash County, deceased, by his last will and testament devised and bequeathed to his three illegitimate daughters, Mourning, Margaret and Temperance Jackson, certain negro slaves, all his cash on hand, certificates, stock in trade, debts due by bond or otherwise, and (357) all and everything else of his estate, real, personal or mixed, not devised or bequeathed to others, and directed the said estate to be equally divided between them when they should arrive at the age of eighteen years, or marry; "between them and the heirs of their bodies forever; but if either of the said children, Mourning, Margaret and Temperance, should die before they arrive at the age of eighteen years, or marries, then and in that case my will and desire is that the estate of the one deceased should be equally divided between the surviving two, to them and the heirs of their bodies forever; and if two of the said children should die before they arrive at the age of eighteen years or marries, then it is my will that the portion of the two deceased shall descent to the surviving one and the heirs of her body forever; but if all my daughters, Mourning, Margaret and Temperance, should die before they arrive at the age of eighteen years, or marries and has issue thereby, then the said negroes, with their increase, money, certificates, stock in trade, and all other property which they are entitled to by this will, shall go to and be equally divided between Bennet Boddie, George Boddie, Temperance and Mary Perry, daughters of Nathan Boddie, and my two nieces, Rhody Ricks and Mourning Arrington, to them and their heirs forever."
Haywood for complainants.
(378) Browne for defendants.
From Halifax.
Mourning, one of the daughters, intermarried with James Branch, and died, after attaining the age of eighteen years, and after having a still-born child. She had no issue born alive. Margaret intermarried with John Alston, and Temperance with James Alston, and the said Alstons and wives filed their bill against James Branch, who survived his wife Mourning, for an account of so much of the estate of the testator, Micajah Thomas, as had been allotted to the said Mourning shortly after her marriage, and as had come to the hands of said Branch; and also against William Arrington, who had been guardian to the said Mourning, to restrain him (358) from paying over to Branch such moneys, belonging to the estate of the said Mourning, as were then in his hands; and the bill prayed that Branch might be decreed to deliver up to complainants the negroes and other estates, and pay over to them such moneys as were in his hands belonging to the estate of the said Mourning.
To this bill the defendants demurred, and it was submitted to the Supreme Court, Whether the estate vested absolutely in Mourning when she attained eighteen or when she married, or whether it ceased and determined by her death without issue after marriage.
The testator's intention appears to have been that as his daughters attained the age of eighteen years or married, their shares of his estate, which, before those events happened, were contingent, should become absolute. A literal construction of the will would not effectuate this intention; for then, a dying under eighteen years of age, although the daughter was married, or a dying without marriage, although she had attained the age of eighteen years, would give her share over to the survivors. If the word or is construed copulatively, then the survivors can claim the shares of the deceased only upon the event of her having died unmarried and under eighteen. But Mourning having reached the age of eighteen, and having also married, there is not the least right in the complainants. To show that the will ought to be thus construed, the cases cited in Dickenson v. Jordan, post, 380, clearly prove. Another clause of the will provides that in the event of the death of his daughters under the age of eighteen years, (379) or marriage and having issue thereby, the estate shall go over to some other persons therein named. It is certainly a sound rule of construction, that every part of a will shall be taken into view, in order to ascertain the design of the maker; and this clause seems to show more clearly that the intention of the testator would not be accomplished by adopting the construction contended for by the complainants; for, then, the claim of the issue of a daughter dying under eighteen might have been defeated, which cannot be thought to have been wished or contemplated by the testator, who has called distant relations into the sphere of his bounty only upon a total failure of all those circumstances upon the happening of which he meant the shares of his daughters respectively to rest so as to become absolute.
In borrowing light from the clause of the will, we must keep in mind this important fact, that the same construction which would entitle the complainants to their deceased sister's share of the estate must be equally operative to transfer their own shares to the ulterior legatees. The Court cannot now decree in favor of the complainants on the ground of Mourning having died without issue, and hereafter refuse to sustain a bill in favor of the rest of the legatees, in the event of the complainants dying without issue. Moreover, if the complainants had died under the age of eighteen years, leaving issue, the same construction must have taken the estate from that issue and given it to these distant relations, if they are relations at all; for it does not appear that more than two of them are connected with the testator. Upon the whole, the Court are of opinion that the occurrence of either event, to wit, attaining the age of eighteen years, marriage and having issue thereby, was sufficient to vest the shares absolutely in the daughters; and that, consequently, nothing short of the failure of all these events would vest the share of a deceased daughter in the survivors, or in the residuary legatees upon the death of the daughters. Let the demurrer be sustained.
(380)