Opinion
(June Term, 1842.)
1. A devised as follows: "I lend to my daughter P. J. one negro girl named Mary, her life, and after her death, to be equally divided among the heirs of her body forever": Held, that these words, if applied to real estate, would have created an estate tail at common law, and that where words in a will would create an estate tail in land at common law, they carry the absolute estate in a bequest of chattels.
2. A bequest of a "negro woman and all her children" does not include the grandchildren of the woman, born in the lifetime of testatrix.
3. A residuary clause in a will of "All the balance of my estate, that is not given, to be sold, and the money arising from the sale I give to A. B.," etc., does not include the specie and bank notes in possession of the testator at the time of his death.
THIS was an appeal from certain interlocutory decrees made by his Honor, Settle, J., at Spring Term, 1842, of NORTHAMPTON Court of Equity.
The bill was filed at Spring Term, 1842, of Northampton Court of Equity by William D. Bradley, executor of Mary Jones, against Sugars Jones and others, and its allegations (so far as regards the questions brought to the Supreme Court) were that the said Mary Jones departed this life some time in 1842 after having duly made and published her last will and testament, which was proved in Northampton County Court at March Term, 1842, by which the plaintiff was appointed her executor, and that he qualified as such, and a copy of the will was annexed to and prayed to be taken as a part of the bill; that in and by the said will the testatrix bequeathed as follows: "I give unto my son Willie Jones' children one-sixth share in my negro woman Mary and all of her children. I give unto (246) my daughter Polly Carpenter one-sixth share in my negro woman Mary and all her children. I give unto my son Richard Jones and my son Allen Jones and my son Sugars Jones and my son William P. Jones one-sixth share apiece in Mary and her children"; that the said negro woman Mary had been bequeathed to the said testatrix by the will of her father, George Norwood, in the following words, to wit: "I lend to my daughter Mary Jones negro girl Mary her life; after her death, to be equally divided among the heirs of her body forever"; that in the will of the said testatrix there was also the following clause: "All the balance of my estate that is not given to be sold, and the money arising from the sales I give unto my son Sugars Jones one-fifth part of the same, and all the balance I give unto my son William P. Jones"; that there was found among the effects of the said testatrix specie and bank notes amounting to about $640, which were claimed by the said residuary legatees, and their claim was opposed by the distributees of the said Mary Jones, alleging that as to this fund she had died intestate. It was also alleged that the slave Mary mentioned in the will of Mary Jones had a grandchild. And the plaintiff as executor prayed that as there were conflicting claims under these two wills and he was ignorant as to the proper construction to be put on them, the court would advise how he should settle with the several claimants, and the proper parties were made.
The defendants answered and admitted all the material facts stated in the plaintiff's bill and submitted to any decree the court might make in the premises.
The case coming on to be heard upon the bill, answers and the wills referred to, his Honor declared that by the will of George Norwood the testatrix, Mary Jones, was entitled in absolute estate to the slave Mary and her children mentioned in the pleadings, and that said slaves are disposed of by the will of the said Mary; that the slave ....., the grandchild of the said slave Mary, did not pass by the will of the said testatrix under the clause bequeathing the said slave Mary and her children, but was disposed of by the residuary clause of the said will, and that by the said residuary clause all the property of the (247) said testatrix (including the specie and bank notes) not specifically bequeathed by the said will passed to the defendants Sugars Jones and William P. Jones, and a decree was made accordingly.
One of the defendants prayed an appeal from so much of the decree as declared that the testatrix Mary Jones under the will of her father took an absolute estate in the slave Mary. Others of the defendants prayed an appeal from so much of the decree as declares that the grandchild of the slave Mary did not pass under the bequest of Mary and her children and also from so much of the decree as declared that the specie and bank notes in possession of the testatrix at the time of her death passed to Sugars Jones and William P. Jones as residuary legatees, which appeals were allowed by the court.
No counsel for plaintiff.
B. F. Moore for defendants.
On this appeal there are three questions for this Court to determine. 1. What estate or interest did Polly Jones take under this clause in her father, George Norwood's will, "I lend to my daughter Polly Jones one negro girl named Mary for her life; after her death, to be equally divided among the heirs of her body forever." The difference between this case and Ham v. Ham, 21 N.C. 598, consists in the words "equally to be divided among the heirs of her body forever." In Ham v. Ham the gift was to her daughter for life, then to her lawful heirs. In the case before us, if it had been a devise of land we think that Polly Jones would have taken an estate tail at the common law, and wherever words in a will create an estate tail in lands they will, in a bequest of chattels, carry the absolute estate. That the words made use of in Norwood's will would create an estate tail in a devise of land we think is established by the two cases of Jesson v. Wright, 2 Bligh., 2, and Doe v. Harvey, 4 Barn. Cress., 610. Hays Real Estate, 100-115. We therefore approve of this part of the decree. 2. Mary Jones by her last will gave her "negro woman Mary and all her children" to certain legatees. The slave Mary had a (248) grandchild born in the lifetime of the testatrix. Did the grandchild of Mary pass to the said legatees under the words "and all her children"? A devise or bequest to the children of a man do not extend to his grandchildren. Grandchildren never take when there are children to answer the description. 2 Powell Dev., 298 (Jar. Ed.), and the cases there cited. If, therefore, when the persons to take are described as "children" and under that description a grandchild cannot take, if there be children, so we think that where the property bequeathed is described in the will "to be the children of my negro woman Mary" the grandchild will not pass to the said legatees. The grandchild of the slave Mary is therefore to be sold under the residuary clause and the money arising from the sale is to go to William Jones and Sugars Jones in the proportions declared in the will. We approve, therefore, of this part of the decree. 3. We do not agree to so much of the decree as declares William Jones and Sugars Jones to be the general residuary legatees of the testatrix, Mary Jones. The words of the will are as follows: "All the balance of my estate that is not given to be sold, and the money arising from the sale I give to my son Sugars Jones one-fifth and all the balance I give to my son William Jones." William and Sugars are to have only the money arising from the proceeds of the sale, and not all her money. We think that the testatrix could not have intended that her specie and bank notes on hand at her death should be exposed to sale. She must necessarily have meant by the above words such property as was usually the subject of sale. William and Sugars are therefore only particular residuary legatees of that money which arose from the sales of all the salable property not disposed of by the will. The money on hand at the testatrix's death (viz., specie and bank notes) is undisposed of by the will, and it will be distributed among the next of kin. So much of the decree, therefore, as declared that the money on hand belonged to Sugars Jones and William Jones ought to be corrected according to this opinion. The costs of the cause in this Court are to (249) be paid by the plaintiff out of the funds in his hands. No solicitor's fee to be taxed.
PER CURIAM. Decreed accordingly.
Cited: Swain v. Roscoe, 25 N.C. 203; McCorkle v. Sherrill, 41 N.C. 1778; Alexander v. Alexander, ib., 231; Pless v. Coble, 58 N.C. 232; Hogan v. Hogan, 63 N.C. 225; Harkness v. Harkey, 91 N.C. 199.