Opinion
(June Term, 1863.)
1. A testator, in contemplation of a certain contingency, provided that, thereupon an estate, consisting of realty and personalty, should be divided into four parts, and distributed as follows, "One each to a brother and a sister, and their heirs"; "One part to my other lawful heirs, and the fourth part to foreign missions, to be paid over to the treasurer of that board, to be appropriated to that purpose." By another clause, he provided that, "If there should be any property, either real or personal, not given away heretofore, it is to be equally divided between all my lawful heirs."
2. The brother and sister survived the testator, but died before the happening of the event contemplated. Upon the happening of that event:
3. Held, that the two shares, first mentioned, descended — the realty to the heirs, and the personalty to the personal representatives of the brother and sister respectively.
4. That the third share belonged to such as were heirs of the testator as to realty, excluding the heirs of the brother and sister first mentioned.
5. That the share devised to foreign missions, having lapsed on account of the ambiguity of the clause which contained it, fell into the residue, and descended upon all those who were heirs of the testator as to realty.
CAUSE removed from the Court of Equity of CHATHAM.
This bill was brought for a partition of real and personal estate, of which the plaintiffs allege they, with the defendants, were jointly seized under the will of Joshua Williams, of which the following is the material clause:
"3d. I give unto my beloved daughter, Sarah Ann E. Williams, all the residue of my property, both real and personal (not given to my wife), to have and to hold to her and her heirs forever. Nevertheless, if my daughter should die leaving no legal heirs of her body, then and in that case my will is that her estate, both real and personal, shall be divided into four parts. One-fourth part to my beloved sister Elizabeth Hackney, and her heirs forever. One-fourth part to my beloved brother, Anderson Williams, and his heirs forever. One-fourth part to my other lawful heirs. One-fourth part to foreign missions, to be paid over to the treasurer of that board, to be appropriated to that purpose. If there should be any property, either real or personal, not given (382) away heretofore in this will, it is then to be equally divided between all my legal heirs."
The will was dated and the testator died in 1848.
Sarah Ann E. Williams died in July, 1851, without issue, and Sims Upchurch administered on her estate.
Anderson Williams having survived the testator, died in the lifetime of Sarah Ann E. Williams and John Hackney, his administrator and his children are plaintiffs. Elizabeth Hackney survived the testator, but died in the lifetime of said Sarah Ann E. Williams. Her administrator and children and grandchildren are plaintiffs.
Besides the sister and brother mentioned in the will, Joshua Williams left two sisters, Dolly Bynum and Dorcas Neville, and a brother, Nimrod Williams, who are plaintiffs. He had also two brothers, Joseph and Henry, and a sister, Sarah, who died in his lifetime, and whose children are plaintiffs. The children and grandchildren of the brothers and sisters deceased being his sole heirs at law, claim to have divided among them so much of his real and personal estate as is named in the third article of the said will. The children of brothers and sisters, together with the widow of the testator, claim to be entitled, under the expressions "lawful heirs" and "legal heirs," to whatever of the personal estate of the deceased is contained in the said article, and that they are also entitled to so much of the property as was intended to be conveyed to foreign missions.
Phillips, for the plaintiffs.
Manly, for the defendant.
Joshua Williams died in 1848, leaving a will by which, after providing for his wife, he gives to his daughter, Ann (who was their only child), all the residue of his property, both real and personal; but if she should die leaving no child living at her death, "then her estate, both real and personal, to be divided into four parts. (383) I give one part to my sister, Elizabeth Hackney, and her heirs forever; one part to my brother Anderson; and his heirs forever; one part to my other lawful heirs, and the other fourth part to foreign missions, to be paid over to the treasurer of that board, to be appropriated to that purpose." "If there should be any property, either real or personal, not given away heretofore, it is to be equally divided between all my legal heirs." Anne, the only child of the testator, died intestate, and without leaving a child, in the year 1851. Elizabeth Hackney and Anderson Williams outlived the testator, but died before his daughter Anne. Dolly Bynum, Dorcas Neville and Nimrod Williams are the sisters and brother of the testator, and the several other plaintiffs and defendants are the children of deceased brothers and sisters who died in his lifetime.
Elizabeth Hackney and Anderson Williams were each entitled to one-fourth of the real and personal property given to Anne, upon the contingency of her death "without leaving legal heirs of her body."
It is settled that when the person is known, but the event is uncertain, a contingent remainder, conditional limitation or executory devise is transmissible by descent and such an interest in personal property passes by succession to the personal representative. ( See Fearne.) So, although Elizabeth Hackney and Anderson Williams died before the contingency happened, the interest of each, respectively, in the real estate was transmitted by descent to their heirs, and their interest in the personal estate passed to their respective personal representatives.
One other fourth part of the real and personal estate is given to the testator's "other lawful heirs."
When used in a limitation over of personal estate, the word "heirs," unexplained and standing by itself, is held to mean "distributees," or the persons entitled under the statute of distributions; but where a fund, composed of both real and personal estate, is given over to the testator's "heirs," and it is apparent that he intends the same persons to take both estates, it is settled that inasmuch as by force (384) of the word "heirs," in its appropriate and technical sense, the heir at law is entitled to the real estate, he is also entitled to the personal estate, because of the intention that both should go together; 2 Jarman on Wills, 22, 23, and notes; 4 Kent, 537, note; Gwyn v. Murdock, 14 Vesey, 488; McCabe v. Spruill, 16 N.C. 189. It follows that this fourth part, both of the personal and real estate, upon the death of the testator's daughter, vested in those persons who were then his heirs at law, to wit, his sisters and brother, and the children of his deceased brothers and sisters, who bring themselves up by the right of representation, and take the shares their parents, if alive, would have taken. But inasmuch as by the word "other," in direct reference to Elizabeth Hackney and Anderson Williams, the testator expresses his intention that they (to each of whom he had given one-fourth part) should be excluded from this fourth part, it follows that their children, who can only bring themselves up to an equality with their aunts and uncle by representing their parents, have no right to any part of this fourth.
The other fourth part of the real and personal estate is given over to "foreign missions, to be paid to the treasurer of that board, and to be appropriated to that purpose." It is conceded that these words are too vague and uncertain to vest any interest in any person or corporation. So this fourth part falls into the residuum, and passes to the "legal heirs" of the testator. The persons entitled to take under the word heirs have been already indicated. There being no word of exclusion, the children of Elizabeth Hackney and of Anderson Williams represent their parents, and take a share of this fourth part. It is settled that the effect of the word "equally" is to require the distribution to be made per capita; Freeman v. Knight, 37 N.C. 76, and, as is said in that case, "whatever might be thought of these distinctions were the matter now a new one, to disregard them at this day would be quieta movere."
PER CURIAM. Decree accordingly.
Cited: Clark v. Cox, 115 N.C. 98.