Opinion
(June Term, 1866.)
A testator gave to his wife money, slaves, etc., and afterwards, by a residuary clause, directed "that the balance of his property be sold, and the money arising therefrom be equally divided amongst all the legatees named in this will, except the Masons:" Held,
1. That the residuary clause included such articles in the lapsed legacy as are the subjects of sales at auction, but not such articles (either lapsed or otherwise undisposed of), as are not subjects of such sales.
2. That persons referred to in other parts of the will only as "children of," etc., are included in such residuary clause equally with persons actually named in such parts.
3. That the division directed by the residuary clause is a division per capita.
4. That the word "legatees" in the residuary clause included the wife, and that her share in the residue having lapsed does not go to the other residuary legatees, but is undisposed of, and goes to the next of kin.
5. A bequest, that certain chattels "in the possession of my son John shall be divided between his children that may be living at his death," does not, by implication, confer a life estate upon John, but such interest for life falls into the residue.
ORIGINAL BILL, filed to Fall Term, 1864, of JOHNSTON, in order to obtain instructions upon a will. At the same term the cause was set for hearing, and transferred to this Court.
No counsel in this court for the complainant.
Haywood and Rogers, for the defendant.
The opinion contains a sufficient reference to the facts.
The will of the testator consists of only five short dispositive clauses, yet the plaintiff's counsel suggests several difficulties which have arisen as to the proper construction of it, upon which he asks our advice and direction:
1. In the first clause of the will the testator gives his wife (6) twenty dollars in money and several personal chattels, absolutely, and three negro slaves, to wit: Tom, Frank and Dilly, for life, making no other disposition of these specifically. In the fifth clause he says: "It is my desire that the balance of my property be sold, and the money arising therefrom be equally divided amongst all of the legatees named in the will, except the Masons." The testator's wife died in his lifetime, and it is asked, do the money, personal chattels and negroes fall within the residue, to be sold for division as prescribed in the residuary clause? The answer is, there is nothing restrictive in that clause to prevent it from embracing all the articles, except the money. This is established by many cases, and among others by Jones v. Perry, 38 N.C. 200.
2. The testator died possessed of money, notes, bonds, and other evidences of debts, which are not disposed of by the will, unless they are included within the terms of the residuary clause, and it is asked again, do they pass by it, or do they go to the next of kin as personalty undisposed of? It is settled by several cases that, as they are not the subject of sale by auction, they can not pass by such a clause. See Pippin v. Ellison, 34 N.C. 61; Scales v. Scales, 59 N.C. 163. The money, then, including the lapsed legacy of $20, together with the notes, bonds and other evidences of debt, must be distributed amongst the next of kin of the testator.
3. The four children of the testator's deceased daughter, Nancy Pully, have legacies given to each of them by name in the third clause of the will, while the children of his son, John, are mentioned as legatees in the second clause as a class, by the description of children. The questions are, do the children of John take at all under the residuary clause; and if they do, is the division to be per capita among the Pully and the John Earp children, or do the latter take only one share as a class? It is settled that John Earp's children do take as legatees, and take per capita with their cousins, the Pully children. See (7) Tucker v. Tucker, 40 N.C. 82.
4. The residuary clause directs an equal division "amongst all the legatees named in the will except the Masons"; and a question arises, whether the testator's wife, who died in his lifetime, and his son, John, who took but a life estate in certain lands and slaves and a small sum of money, are to be regarded as legatees, entitled each to a share of the residue? We can see nothing to exclude them. Another question is then presented, as to what is to become of the wife's share of this residue, which lapsed by her death in the testator's lifetime. For the reasons given by us in the case of Winston v. Webb, ante, 1, the wife's share of the residue can not go to the other residuary legatees, but must go to the next of kin of the testator. The consequence is that the residue must be equally divided, per capita, amongst John Earp, his children and the Pully children, reserving a share for the wife, which, having lapsed, is to be distributed according to law among the next of kin.
In the second clause of the will, the testator lends to his son, John, for life, three negroes which he had put into his possession, and at his death to be equally divided between his and his sister Nancy Pully's children, adding "the increase from the above named negroes, since they have been in possession of my son, John, I wish to be divided between his children that may be living at his death." The counsel for some of the defendants suggests a doubt as to the proper construction of the clause. The question put is, does the increase belong to John for life by implication, or is it undisposed of in that clause, so as to go into the residue mentioned in the last clause? We answer that John can not take it, because personal chattels are never so taken, by implication, under a will. White v. Green, 36 N.C. 45. It follows (8) that it must fall into the residue, to be disposed of in the manner which we have hereinbefore declared.
Let a decree be drawn in accordance with this opinion, directing such accounts as may be needed, etc.
PER CURIAM. Decree accordingly.
Cited: Vaughan v. Murfreesboro, 96 N.C. 320.