Opinion
May Term, 1819.
From Mecklenburg.
Testator bequeaths a slave named Nell "to his wife during her natural life or widowhood," and in a subsequent clause of his will, he says, "I desire that the negro woman Nell shall become the property of my daughters, A. and B. at their mother's death, or at the time that my son Thomas arrives to sixteen years of age. If the widowhood of my wife should terminate before her natural life, Nell shall remain in this place for the support of my children."
The daughters are not entitled to Nell, until both events happen, to-wit, the death of the widow, and the arrival of Thomas to the age of sixteen; and the Court will construe the word or conjunctively, to effectuate the testator's intention.
The question in this case arose out of the will of Thomas Dunn, deceased. In the first clause of his will, he bequeathed "a negro woman named Nell and her child Esther, to his wife, during her natural life or widowhood;" and in a subsequent clause, he bequeathed as follows; "I desire that the negro woman Nell before mentioned, shall become the property of Jane Gibbons and Betsy Spratt, at their mother's (the testator's wife's) death, or at the time that my son Thomas arrives to sixteen years of age; and her increase, if any, before that time, to be equally divided among the rest of my children. And be it understood that it is my will, that if the widowhood of my wife should terminate before her natural life, the above named negro Nell shall remain in this place for the support of my children who may live here." The son Thomas having arrived at the age of sixteen years, Jane Gibbons and Betsy Spratt, with their husbands, claimed Nell and her children born after Thomas' arrival to the age of sixteen years; and filed a petition against the executors of the testator, praying that they might be decreed to deliver the negroes to them. The executors filed their answer, and therein insisted that the true intent and meaning of (549) the testator, as to the negro woman Nell, was, that she should not go over to the petitioners until both of the events named in the will, to-wit, the death of the widow and arrival of Thomas to the age of sixteen years, should happen; and that the widow was still alive. The Court was of this opinion, and dismissed the petition. The petitioners appealed to this Court.
In the first clause of the will, relative to the negro Nell, the testator gives her to Mary his widow, during her widowhood or natural life; in the next clause wherein he speaks of her, he does not say expressly, how long she shall remain where he lived, but no doubt he meant until Thomas should attain the age of sixteen years. If, however, the mother's widowhood had not expired when Thomas arrived to the age of 16 years, she stood in as much need of Nell's services for support as before. In such event, the testator made no provision for the support of his children out of her services, because he no doubt expected that the mother, who was to have a maintenance out of the produce of the plantation where he live, and the children would live together. It seems to me, that considering the first clause where the negro Nell is given to the widow during her natural life or widowhood, with the latter clause, the true construction is, that she should belong to the widow during her life or widowhood, but that after her death, or after the termination of her widowhood, provided his son Thomas should have attained the age of sixteen years, she should become the property of his daughters, Jane Gibbons and Betsy Spratt. The petition must be dismissed with costs.
From a consideration of all the parts of this will, it appears satisfactorily to my mind, that the testator did not intend that Nell should become the property of his married daughters, until after the happening of two events, to-wit, the death of his wife, and the arrival of his son Thomas to the age of sixteen years. (550) His wife was to be supported out of the plantation, as long as she lived or remained a widow, and Nell was to assist in procuring that support. If his wife married again, Nell was still to continue on the plantation, to work for the children who should live there; and this would be necessary, at least until Thomas arrived at sixteen, when the testator calculated he might be better able to take care of himself. He could not intend, that the wife, remaining single, should be deprived of such assistance as Nell might afford her, as soon as Thomas reached sixteen; nor that Thomas and the others living on the plantation should lose the services of Nell in the event of the death of their mother before that period. She might have died immediately after the death of the testator, when Thomas was of very tender years. The different parts of the will are to be reconciled, and the manifest intent of the testator effectuated, and by reading the word " or" conjunctively, as if "and" had been written which it is allowable to do, according to the cases collected in 2 New Rep., 38. I am of opinion the petition should be dismissed.
HENDERSON, Judge, concurred.
Cited: S. c. 18 N.C. 448. (551)